Ehab Asal v. Estate of Mina

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 18-CV-534, 19-CV-642, & 19-CV-643
EHAB ANWAR ASAL ET AL., APPELLANTS,
v.
FAYEZ F. MINA, AS ADMINISTRATOR AND LEGAL REPRESENTATIVE OF THE
ESTATE OF GEORGE FAYEZ MINA, APPELLEE.
Appeals from the Superior Court
of the District of Columbia
(CAB-9125-15)
(Hon. William M. Jackson, Trial Judge)
(Argued January 7, 2020 Decided March 18, 2021)
Patricia Lambert, with whom Brian Cathel and Emily Devan were on the
brief, for appellants Ehab Asal and Hala Asal.
Laura Basem Jacobs for appellant Nationwide Property & Casualty Insurance
Co.
Peter Scherr, with whom Scott Futrovsky was on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, Associate Judge, and
RUIZ, Senior Judge.
Opinion by Associate Judge THOMPSON, dissenting in part, at page 50.
BLACKBURNE-RIGSBY, Chief Judge: In this appeal, we address the rights and
respective duties of drivers and pedestrians when crossing at unsignalized
2
crosswalks. It arises from a jury verdict finding Ehab and Hala Asal liable for the
death of George F. Mina after he was struck by the Asals’ vehicle. The Asals appeal
the trial court’s directed verdict on the issues of negligence and contributory
negligence in favor of Mr. Mina’s estate, as well as its decision to leave undisturbed
the jury’s $275,000 non-economic damages award on the survival action.
Nationwide Property & Casualty Insurance Co. (“Nationwide”), the Asals’ auto
insurer, appeals the trial court’s ruling that Mr. Mina’s estate is entitled to garnish
the benefits of the Asals’ insurance policy. Finding no error, we affirm.
I. Background
In June 2015, driver Ehab Asal struck and killed pedestrian George F. Mina.
Mr. Mina’s father, Fayez Mina, acting as the personal representative of Mr. Mina’s
estate (the “Estate”), filed a complaint against Mr. Asal and his wife, Hala Asal,
alleging, in relevant part, claims under the District of Columbia’s Survival Act, D.C.
Code § 12-101 (2012 Repl.), and Wrongful Death Act, D.C. Code § 16-2701 (2012
Repl.). 1 A one-day jury trial was held on November 15, 2017, which established
largely undisputed facts, as the collision was caught on video camera.
1
At the time of the collision, Mr. Asal was driving a car owned by his wife,
Ms. Asal. The Estate named Ms. Asal as a defendant because she owned the car,
not because of her involvement in the collision.
3
A. Factual Background
The following facts are derived from the trial testimony, which was
corroborated by the surveillance footage viewed by the trial court and the jury. On
June 10, 2015, at approximately 5:06 p.m., Mr. Mina waited in the bus lane inside
the crosswalk on the southeast corner of Wisconsin Avenue and Veazey Street NW
to cross Wisconsin Avenue. Wisconsin Avenue is a busy, six-lane roadway with
three northbound and three southbound lanes of traffic. At Veazey Street, an
unsignalized crosswalk divides Wisconsin Avenue, with several pedestrian crossing
signs facing drivers in both directions – including a sign in the middle of Wisconsin
Avenue; the intersection does not have a stop sign. Emma Rigney, who was driving
a red SUV northbound in the middle lane on Wisconsin Avenue, testified that she
stopped just before the crosswalk to let Mr. Mina cross. The two made eye contact,
Mr. Mina smiled and waved, and he proceeded to cross. While walking past Ms.
Rigney’s stopped car, Mr. Mina turned his head and attention away from the
oncoming northbound lanes (the direction of Ms. Rigney’s car) and toward the
opposite, southbound lanes to observe oncoming traffic. He then turned his attention
back, to observe the innermost northbound lane. At that time, Mr. Asal’s vehicle,
which was proceeding in that lane, collided with Mr. Mina. Mr. Mina’s body hit the
4
side of Mr. Asal’s car, his head hit the windshield, and he was thrown five to six feet
onto the pavement, where he lost consciousness.
Mr. Asal testified that he knew the area well because he passed through it
every day driving to his job at a restaurant located approximately four blocks from
the intersection. He was also aware of the crosswalk at that location and that it was
marked by several pedestrian warning signs facing his direction. Approaching
Veazey Street at the time of the collision, Mr. Asal was driving northbound in the
left, innermost northbound lane of Wisconsin Avenue at approximately twenty to
thirty miles per hour. Mr. Asal observed Ms. Rigney’s car (in the middle northbound
lane) slow down as it approached the crosswalk, but testified that he did not see her
car stop. 2 The car immediately in front of Mr. Asal in his lane and an oncoming
southbound car both drove through the intersection without stopping. Mr. Asal
testified that he did not see a pedestrian in the crosswalk, and he did not slow down
or stop at the crosswalk. Mr. Asal testified that he did not see Mr. Mina until the
collision, when Mr. Mina struck his windshield.
2
Mr. Asal testified that, in his experience, cars that were slowing down as
they approached the intersection were generally turning, not stopping. On cross-
examination, however, Mr. Asal confirmed that there was no street sign that
authorized a car to turn right from the middle lane and that he did not observe Ms.
Rigney with her right turn signal on at the time.
5
Dr. John Davitt, a medical resident at Washington Hospital Center, testified
that he was sitting at a restaurant adjacent to the crosswalk when he heard the
collision and saw Mr. Mina being tossed from Mr. Asal’s car onto the pavement.
Dr. Davitt immediately went to the crosswalk, where he found Mr. Mina bleeding,
unconscious, and unarousable, though breathing and with a pulse. Dr. Davitt
stabilized Mr. Mina’s head and neck while waiting for an ambulance to arrive.
An ambulance transported Mr. Mina to the George Washington University
Hospital emergency room. Dr. Babak Sarani, Mr. Mina’s treating physician and the
Estate’s expert witness, testified that Mr. Mina was
“radioed [in] as being unconscious” and confirmed that he was “in a very deep state
of coma” upon his arrival at the emergency room. Dr. Sarani rated Mr. Mina a three
on the Glasgow coma scale, the lowest score, indicative of “a deeply comatose
person.” 3 Dr. Sarani testified regarding the extent of Mr. Mina’s injuries and the
3
Dr. Sarani explained that the Glasgow coma scale “is a means of measuring
someone’s degree of coma” – “how awake are you versus how . . . deep a coma are
you in.” The score ranges from three to fifteen, with the lowest score, representing
a deeply comatose person, being a three. See also Clements v. United States, 669
A.2d 1271, 1274 (D.C. 1995) (describing the Glasgow Coma Scale as a
“measurement of [the] degree of alertness” that “rat[es] a person between a high of
15 and a low of 3”).
6
medical procedures and therapies he underwent following his arrival at the hospital. 4
Mr. Mina died on June 16, 2015, six days after the collision. Dr. Sarani testified that
Mr. Mina was unconscious from the moment he arrived at the hospital until he died.
B. Judgment in Favor of the Estate
At the close of evidence, the trial court granted the Estate’s motion for a
directed verdict on the issues of Mr. Asal’s negligence and Mr. Mina’s contributory
negligence. As to negligence, the trial court ruled that Mr. Asal – knowing there
was a pedestrian warning sign and seeing Ms. Rigney’s car slow down (if not stop)
– had a duty to stop and did not. As to contributory negligence, the trial court ruled
that, once Ms. Rigney’s vehicle stopped to allow Mr. Mina to cross, Mr. Mina did
not have a continuing obligation to expect wrongful conduct by other vehicles, i.e.,
that they would drive through the intersection while he was using the crosswalk.
Thus, the only issue remaining for the jury was non-economic compensatory
4
Over defense objection, Dr. Sarani testified that Mr. Mina underwent several
emergency surgeries, in which surgeons removed portions of Mr. Mina’s skull to
extract a blood clot and alleviate pressure in the brain. While those procedures were
initially successful, Mr. Mina’s brain began to experience internal bleeding and
increasing internal pressure. Because surgery was no longer an option, doctors
treated Mr. Mina by medicating him with sedatives, and then cooling his body by
circulating ice-cold water into his veins and rewarming his body. Mr. Mina’s body
ultimately went into multiple organ failure.
7
damages, e.g., for pain and suffering. The jury awarded the Estate a total of
$801,779.30 in damages, including an award of $275,000 in non-economic damages
in the survival action. The trial court entered judgment that same day, November
15, 2017.
Following the entry of judgment, the Asals, on December 12, 2017, moved
for a new trial, arguing that the trial court erred in not submitting the issue of
contributory negligence to the jury, or, in the alternative, for remittitur of the non-
economic damages award because the $275,000 award was not supported by the
evidence. The Asals also filed a motion to stay the execution of judgment pending
a decision on the motion for a new trial. The Estate opposed and responded with a
cross-motion, requesting as a condition for a stay that the Asals post adequate
security through a bond, pursuant to Super. Ct. Civ. R. 62. On May 3, 2018, the trial
court entered separate orders that, in relevant part, (1) denied the Asals’ motion for
a new trial, and (2) granted the Estate’s cross-motion, requiring that the Asals post
a $808,226.00 bond as adequate security for a stay by June 4, 2018. 5 The Asals
timely appealed those orders. 6
5
The $808,226.00 amount comprised the $801,779.30 judgment, plus
previously-awarded sanctions of $6,446.70.
6
This court denied the Asals’ emergency motion to stay the execution of
judgment.
8
C. Nationwide’s Dispute Regarding the Asals’ Insurance Policy
The Asals maintained a Personal Auto Policy with Nationwide (the “Policy”).
Nationwide delivered the Policy to the Asals in Virginia for a vehicle they owned in
Virginia. The relevant parts of that Policy provided as follows. Pursuant to Part B
(“Liability Coverage”), Nationwide agreed to “pay damages for bodily injury . . . for
which any insured becomes legally responsible because of an auto accident” up to
an applicable limit of $200,000, all defense costs incurred in settling or defending
any claim or suit, and “[p]remiums on appeal bonds and bonds to release attachments
in any suit” that Nationwide defends. Pursuant to Part E (“Duties After an Accident
or Loss”), Nationwide may deny Liability Coverage under Part B “if failure to
comply with the following duties is prejudicial to us,” including the duty to
“[c]ooperate with [Nationwide] in the investigation, settlement, or defense of any
claim or suit.” Part F provided:
No legal action may be brought against us [Nationwide]
until there has been full compliance with all the terms of
this policy. In addition, under Part B, no legal action may
be brought against us until:
1. We agree in writing that the insured has an obligation to
pay; or
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2. The amount of that obligation has been finally
determined by judgment after trial. If that judgment is
returned unsatisfied, legal action may then be maintained
against us for the amount of the obligation that does not
exceed the limits of applicable coverage under this policy.
Pursuant to the Policy, Nationwide paid all of the Asals’ defense and appeal costs in
this matter.
On June 7, 2018, the Asals filed a motion to clarify the trial court’s order of
May 3, 2018, which required them to post a $808,226.00 bond by June 4, 2018. In
their motion, the Asals asserted that Nationwide “indicated that it will not provide
collateral for a bond in an amount over $200,000, which is the limit of the applicable
insurance policy.” Without providing any justification, the trial court declined to
clarify its prior order.
Neither the Asals nor Nationwide posted the required bond or paid any of the
judgment. Therefore, on September 18, 2018, the Estate filed a writ of attachment
against Nationwide in an effort to seize the proceeds of the Asals’ insurance policy,
and served interrogatories on Nationwide. Nationwide answered the interrogatories
attached to the writ, denying that it possessed any property belonging to the Asals.
Thereafter, the Estate filed a motion for judgment of condemnation against the Asals
and Nationwide, asserting that the Estate, as the prevailing party in the underlying
10
suit, became a judgment creditor under the Policy and therefore subrogated to the
Asals’ right of indemnification, which required Nationwide to remit the $200,000
Policy limit to the Estate. In opposition, Nationwide asserted that (1) the benefits of
the Policy were not the property of the Asals and therefore not obtainable through a
writ of attachment; and (2) Nationwide had no obligation to pay any amount until
after the conclusion of the appeals process because, under the cooperation clause in
Part E of the Policy, determining the insured’s compliance with the obligation to
cooperate can “be made only after the conclusion of the litigation process, including
the appeal and further trial.”
After a January 18, 2019, hearing, the trial court granted the Estate’s motion
and entered a judgment of condemnation against the Asals and Nationwide for
$200,000. In granting the motion, the trial court, finding no controlling law in the
District, relied on Peninsula Ins. Co. v. Houser, 238 A.2d 95, 97 (Md. 1968), which
holds that a judgment creditor is entitled to the same financial and legal rights as the
judgment debtor under an automobile liability insurance policy. Therefore, the trial
court ruled that the Estate was entitled to collect on and garnish the Asals’ Policy up
to its limit at the time of the November 15, 2017, judgment because, on that date,
“the Asal’s [sic] status changed from Defendants to judgment debtors and
11
Nationwide from interested party to garnishee.” Both Nationwide and the Asals
appeal from that order. 7
II. Negligence
The trial court did not err in its decision to direct a verdict as to Mr. Asal’s
negligence. The Asals contend that the trial court should have allowed the issue of
negligence to go to the jury because there was some evidence that Mr. Asal’s failure
to stop at the crosswalk, as required by D.C. Code § 50-2201.28(a-1) (2014 Repl.),
was “excusable,” thereby defeating a finding of negligence per se and that the jury
should have had the opportunity to weigh Mr. Asal’s reasons for failing to stop. 8
In reviewing the grant of a directed verdict, we use the same test applied by
the trial court, viewing the evidence in the light most favorable to the non-moving
7
Although the Asals’ appeal was docketed in this court as case No. 19-CV-
642, no parties filed any briefs or documents under that case number. Nationwide’s
appeal, No. 19-CV-643, was fully briefed before this court, and we decide the merits
of the issues in both appeals as presented in those briefs.
8
D.C. Code § 50-2201.28(a-1) provides that “[w]henever a vehicle is stopped
at a marked crosswalk at an unsignalized intersection, a vehicle approaching the
crosswalk in an adjacent lane or from behind the stopped vehicle shall stop and give
the right-of-way to ensure the safety of pedestrians and bicyclists before passing the
stopped vehicle.”
12
party and drawing all inferences in its favor. See Nicola v. Wash. Times Corp., 947
A.2d 1164, 1170 (D.C. 2008); Wilson v. Wash. Metro. Area Transit Auth., 912 A.2d
1186, 1188 (D.C. 2006); Abebe v. Benitez, 667 A.2d 834, 836 (D.C. 1995) (per
curiam). “As long as there is some evidence from which jurors could find that the
party has met its burden, a trial judge must not grant a directed verdict.” Abebe, 667
A.2d at 836. Thus, a trial court presiding over a jury trial may direct a verdict against
a party only if it “has been fully heard on an issue, and there is no legally sufficient
evidentiary basis for a reasonable jury to find for” that party. Evans-Reid v. District
of Columbia, 930 A.2d 930, 936 (D.C. 2007). “This court considers de novo
whether the evidence was sufficient to go to the jury.” Wilson, 912 A.2d at 1188(emphasis omitted).
Where a person’s violation of a statute proximately causes an injury that the
statute was designed to prevent, “there is a rebuttable presumption of negligence on
the part of the violator,” i.e., negligence per se. Robinson v. District of Columbia,
580 A.2d 1255, 1256 (D.C. 1990). If the violator demonstrates that he or she did
“everything a reasonably prudent person would have done to comply with the law,”
then the statutory violation merely constitutes evidence of negligence. Id. Here, the
trial court ruled that Mr. Asal was negligent when he failed to stop for Mr. Mina,
“not merely from violation of the statute, but from the facts that have been introduced
13
thus far,” i.e., finding liability as to both negligence per se and negligence. Thus,
while Mr. Asal contends that the jury should have been permitted to consider his
reasons for failing to stop and thereby evaluate whether his conduct was negligent,
it is clear that the trial court evaluated Mr. Asal’s reasons for failing to stop and
nevertheless determined that he was negligent as a matter of law. Thus, the trial
court directed a verdict as to both negligence and negligence per se.
On appeal, the Asals argue that Mr. Asal did not comply with D.C. Code §
50-2201.28 because he thought Ms. Rigney was “merely turning,” based on “what
he observed and his experience driving regularly in the area.” However, they
advance no explanation as to why Mr. Asal’s reasons for failing to stop demonstrate
that he “did everything a reasonably prudent person would have done to comply with
the law.” Robinson, 580 A.2d at 1256. Mr. Asal testified that he believed Ms.
Rigney was going to make a right turn despite his testimony that she was in the
center lane of traffic, that there was no street sign that authorized her to turn right
from the middle lane, and that he did not observe her as having her right turn signal
on. Thus, all that is left is what the Asals argue is Mr. Asal’s “experience.” See
supra note 2. However, the record provides no evidence that Mr. Asal regularly
observed vehicles making right turns from the middle lane of traffic or that it was
the regular practice at that intersection; he only testified that the right lane is a “bus
14
stop.” 9 On this record, there is no legally sufficient evidentiary basis for a jury to
conclude that Mr. Asal’s reasons for failing to stop excused his violation of D.C.
Code § 50-2201.28, such that the issue of negligence should have gone to the jury.
See Evans-Reid, 930 A.2d at 936. Therefore, we find no error in the directed verdict
on Mr. Asal’s negligence.
III. Contributory Negligence
The Asals argue that the trial court erred in directing a verdict for the Estate
on the issue of contributory negligence, rather than submitting the issue to the jury.
We find no such error. For the reasons explained below, we hold that a pedestrian
has a duty to exercise reasonable care for the protection of his or her own safety,
even when he or she has the right-of-way at an unsignalized intersection or
crosswalk. We conclude that the evidence, viewed in the light most favorable to the
Asals and drawing all inferences in their favor, was insufficient to support any
finding by a reasonable jury that Mr. Mina was contributorily negligent, i.e., that he
9
Mr. Asal testified that, at the time of the collision, there were no cars parked
along the right-hand side of the street. The video footage corroborates that the right
lane was empty of cars, and it also shows that there was no bus coming to or at that
bus stop in the twenty-five seconds preceding his collision with Mr. Mina.
15
engaged in conduct that was unreasonable under the circumstances. Therefore, the
trial court properly directed a verdict in favor of the Estate on that issue. 10
A. A Pedestrian’s Duty of Reasonable Care
Having considered the principles of contributory negligence, our
jurisprudence in pedestrian-vehicle collision cases, and the relevant statutory and
regulatory framework, we clarify that in all circumstances a pedestrian has a “duty
to exercise reasonable care for the protection of his or her own safety.” Lyons v.
Barrazotto, 667 A.2d 314, 322 (D.C. 1995); see also Standardized Civil Jury
Instructions for the District of Columbia, No. 7.13 (2020 Rev. Edition) (“Before
attempting to cross a street, it is a pedestrian’s duty to make reasonable observations
to learn the traffic conditions confronting him or her, and try to make a sensible
10
We are not persuaded by the Estate’s argument that the Asals waived a
contributory negligence defense. The Asals asserted contributory negligence as an
affirmative defense in their Answer, raised the defense during the deposition of Mr.
Asal, and addressed it in the Joint Pre-Trial Statement by requesting a jury
instruction for “Contributory Negligence Defined” and proposing a verdict sheet
with a contributory negligence instruction. Because the Estate was sufficiently on
notice of the defense, we conclude that it was not waived. Cf. Word v. Ham, 495
A.2d 748, 751 (D.C. 1985) (per curiam) (“Appellees were put on notice of the
defense by appellants’ opposition to their motion for summary judgment and had the
opportunity to respond, and thus cannot claim to have been prejudiced by appellants’
failure to plead this defense in their answer or counterclaim.”).
16
decision whether it is reasonably safe to attempt the crossing.”). Here, we hold that
a pedestrian has a duty to exercise reasonable care when crossing at an unsignalized
intersection or crosswalk, even when he or she has the right-of-way. Thus,
contributory negligence plays a role in determining liability in negligence cases
involving pedestrians, even when the pedestrian has the right-of-way. We reject the
Estate’s argument that a pedestrian, once legally crossing within the crosswalk, has
“no duty to continually observe for traffic which was legally required to stop in
advance of the crosswalk.”
i. Contributory Negligence Principles
In the District, a plaintiff in a negligence action generally cannot recover when
he or she is found to have been contributorily negligent. See Civic v. Signature
Collision Ctrs., LLC, 221 A.3d 528, 530 (D.C. 2019). 11 Contributory negligence
evaluates “the objective reasonableness of the plaintiff’s conduct,” determining
whether “the plaintiff’s behavior in encountering the risk [created by the defendant’s
11
The District remains one of the few jurisdictions that generally retains a
pure contributory negligence defense. See, e.g., Jarrett v. Woodward Bros., Inc.,
751 A.2d 972, 985 & n.20 (D.C. 2000) (noting that the District is different from the
“great majority of jurisdictions,” most of which “have some sort of comparative
negligence regime”). But see infra note 12. Even a contributorily negligent plaintiff
may recover if the defendant had the “last clear chance” to avoid the injury. District
of Columbia v. Huysman, 650 A.2d 1323, 1326 (D.C. 1994).
17
breach of duty] departed from the standard of care that is to be expected of the
reasonable person in the plaintiff’s position.” Sinai v. Polinger Co., 498 A.2d 520,
524 (D.C. 1985). “As a general proposition, a plaintiff is not bound to anticipate
negligent conduct on the part of others. Rather, he may assume that others will fulfill
their duties.” Stager v. Schneider, 494 A.2d 1307, 1311 (D.C. 1985) (citation
omitted).
ii. Relevant Jurisprudence
This court has not had occasion to consider a pedestrian’s duty when crossing
the street in the case of a pedestrian-vehicle collision. Our predecessor courts,
however, provide sufficient guidance from which we can discern relevant principles.
Griffith v. Slaybaugh, 29 F.2d 437 (D.C. Cir. 1928), is one of the earliest
relevant decisions and dealt with a signalized crosswalk. In Griffith, two
pedestrians, “walking rapidly,” began crossing when the signal was green, thus
authorizing their passage; as they crossed, the light changed to red, and a car
traveling perpendicular through the intersection struck them. Id. at 437-38. The
court affirmed a judgment in favor of the pedestrians. Id. at 439. After reviewing
18
the relevant traffic regulations, the court identified the following as a “clear
expression of the law”:
[O]ne entering the street intersection under the direction
of the traffic officer has the right of way and this right of
way continues until he reaches the other side of the street,
and the fact that the semaphore was changed, giving the
traffic in the other direction notice to proceed, does not
give them the right of way over the one first entering the
street crossing, and the one first entering has the right to
presume that he can pass over in safety and is not required
to exercise continuous and extra observation to avoid
vehicles using such street.
Id. at 438 (quoting Riddel v. Lyon, 213 P. 487, 489 (Wash. 1923)). As the court
noted, the pedestrian in a crosswalk always has the right of way, except where there
is a traffic signal, in which case the pedestrian has “the right of way along with other
traffic moving in observance with the traffic signals.” Id. Under the facts of Griffith,
where plaintiffs had a green light when they began to cross the street, the court noted
that “[c]learly there was no contributory negligence on the part of the plaintiffs, since
they were where they had a right to be and were diligently using their best efforts to
clear the street.” Id.Thereafter, in American Ice Co. v. Moorehead, 66 F.2d 792, 793-94 (D.C. Cir.
1933), the court affirmed a verdict in favor of a pedestrian in a pedestrian-vehicle
collision. The pedestrian was crossing at an unsignalized crosswalk when a truck
19
struck her. Id. at 792-93. The court noted that, because the applicable traffic
regulation gave the pedestrian the right-of-way while in the crosswalk, she “had the
right . . . to assume that the driver . . . would exercise reasonable care to look out for
and avoid injuring a pedestrian attempting to cross the street.” Id. at 793. It held
that there was no error in the trial court giving a contributory negligence instruction
because there was “some conflict” as to whether the pedestrian, who was walking
with her husband, was within the lines demarcating the crosswalk. Id. at 793-94.
The contributory negligence instruction informed the jury that they were to
determine the pedestrian’s “omission to do anything which a reasonable person,
guided by those ordinary considerations which regulate human conduct, would do
in the circumstances.” Id. The jury concluded that the pedestrians were in the
crosswalk – “were where they had a right to be” – and thus the “danger arose only
as a result of the negligent conduct of [the] driver.” Id. at 793.
Relatedly, in Miller v. Clark, 109 F.2d 677, 677-78 (D.C. Cir. 1940), the court
affirmed the trial court’s denial of a driver’s motion for a directed verdict on the
issue of a pedestrian’s contributory negligence. The pedestrian in Miller looked both
ways as she entered a crosswalk, “saw her way clear,” began crossing the street, and
was hit by a truck. Id. at 677. The court concluded that the “evidence support[ed],
if . . . not require[d], the inference that [the pedestrian] was free from contributory
20
negligence.” Id. The court noted that it may have been “possible, notwithstanding
[the driver’s] negligence, [that] the greatest of care on [the pedestrian’s] part might
have prevented the accident; but she was, of course, required to use only reasonable
care.” Id. at 677-78. It elaborated that “reasonable care did not necessarily require
[the pedestrian], before or after entering the crosswalk, to look again up [the street]
on the chance that a negligent driver might approach swiftly and without warning
from around the corner.” Id. at 678.
Finally, in Long v. Mercer, the court affirmed the trial court’s denial of a
driver’s motions for directed verdicts as to a pedestrian’s contributory negligence.
125 A.2d 685, 687 (D.C. 1956). The pedestrian began crossing the street while the
traffic light controlling her passage was green. Id. at 686. While the pedestrian was
still crossing, the light changed to red; although several cars waited to allow the
pedestrian to complete passage, the defendant-cab driver did not and struck the
pedestrian. Id. The driver argued that the pedestrian “failed to exercise reasonable
care for her own safety after the light had changed to red against her,” urging that
she “had a duty under the circumstances to look to her right and to do so observantly
and with effect; that is to see what was there to be seen.” Id. The court noted that
it was “a reasonable inference” under the facts of the case – approaching nightfall,
crowded traffic, the pedestrian’s need to watch her footing, and the conduct of other
21
cars that had stopped – that the pedestrian “became aware of defendants’ taxicab as
soon as could be expected of any reasonably prudent person.” Id. at 687. Even
though the pedestrian had the right-of-way, “watchfulness in several directions was
required of plaintiff for her own safety.” Id. However, “the fact that she did not see
the taxicab although it ‘was there to be seen’ does not . . . indicate contributory
negligence as a matter of law.” Id.These cases establish that pedestrians always have a duty to use reasonable
care for the protection of their own safety and that of others, even when they have
the right-of-way while using a crosswalk. That right-of-way, however, is determined
by the applicable statutes and regulations governing pedestrian and driver conduct,
and it further informs whether conduct in a particular case is reasonable. Thus, we
must review that legal framework before espousing general principles (see infra
Section II.A.iii) and before applying it to the facts of this case (see infra Section
II.B).
iii. Statutory and Regulatory Framework
The District’s statutory and regulatory framework establishes a pedestrian’s
right-of-way in certain circumstances, and we discuss the framework that is
22
applicable to unsignalized intersections and crosswalks. The only statutory
provision is D.C. Code § 50-2201.28 (“Right-of-way at crosswalks”), which, in
relevant part, reads:
(a) The driver of a vehicle shall stop and remain stopped
to allow a pedestrian to cross the roadway within any
marked crosswalk, or unmarked crosswalk at an
intersection, when the pedestrian is upon the lane, or
within one lane approaching the lane, on which the vehicle
is traveling or onto which it is turning.
(a-1) Whenever a vehicle is stopped at a marked crosswalk
at an unsignalized intersection, a vehicle approaching the
crosswalk in an adjacent lane or from behind the stopped
vehicle shall stop and give the right-of-way to ensure the
safety of pedestrians and bicyclists before passing the
stopped vehicle.
Applicable regulations reinforce the statutory right-of-way of a pedestrian in an
unsignalized crosswalk. For example, 18 DCMR § 2208.12 (2020) requires vehicles
to “give the right-of-way to a pedestrian” within marked or unmarked crosswalks at
intersections without traffic-controlled signals; § 2208.4 and 2208.6 require vehicles
at stop and yield signs to “yield the right-of-way to pedestrians”; and § 2221.5 (2020)
partially reiterates the requirements of subsection (a-1) of the statute. This
framework identifies a pedestrian’s right-of-way in terms of the driver conduct
23
required, yielding so the pedestrian can cross safely. 12 As the Griffith court
explained, a pedestrian crossing in an unsignalized crosswalk always has the right
of way because he or she lacks the additional protections offered by traffic signals
and is therefore more exposed to the “dangers attending [the use of automobiles]
upon the public highway.” 29 F.2d at 439.
One of the few regulatory provisions directed at pedestrian conduct, rather
than driver conduct, is 18 DCMR § 2303.2 (2020), which states that a pedestrian
may not “suddenly leave a curb . . . or other designated place of safety and walk or
turn into the path of a vehicle which is so close that it impossible for the driver to
yield” – thereby prohibiting a pedestrian from engaging in conduct that contravenes
his or her “responsibility to exercise due care for his [or her] own safety.” Garcia
v. Bynum, 635 F. Supp. 745, 747 (D.D.C. 1986) (granting defendant-driver’s motion
notwithstanding the verdict in pedestrian-vehicle collision case where plaintiff-
pedestrian “walked out from between two unmarked cars in the middle of the block,”
“in a relatively darkened area,” “knowing that a car was approaching a yellow light
12
The District’s statute and regulations governing conduct at signalized
intersections similarly regulate a driver’s conduct. See D.C. Code § 50-2201.28(b)
(requiring a driver to “give[] the right-of-way” to a “pedestrian who has begun
crossing on the ‘WALK’ signal . . . to continue to the opposite sidewalk or safety
island, whichever is nearest”); 18 DCMR § 2208.11 (same); 18 DCMR § 2302.2
(2020) (“Pedestrians facing a ‘WALK’ signal may proceed . . . and shall be given
the right-of-way by the drivers of all vehicles.”).
24
not far from him”), aff’d 816 F.2d 791 (D.C. Cir. 1987). Garcia did not involve a
crosswalk, however, so the obligations on the driver that are incident to the
pedestrian’s right of way did not come into play in evaluating the reasonableness of
the pedestrian’s conduct. See id.iv. Legal Standard
In light of the above authorities, we hold that pedestrians crossing at an
unsignalized intersection or using a crosswalk always have a duty to use reasonable
care for the protection of their own safety and that of others, even when they have
the right-of-way. We find no support for the argument advanced by the Estate that
a pedestrian with the right-of-way has no continuing duty to act reasonably and,
therefore, cannot be barred from recovery as a result of his or her contributory
negligence. Rather, the case law and the statutory and regulatory scheme establish
that a pedestrian’s negligent conduct, even when he or she has the right-of-way, may
bar his or her recovery for a driver’s negligence. 13
13
Further informing our holding is the recently-passed Motor Vehicle
Collision Recovery Act of 2016, D.C. Law 21-167, § 3, 63 D.C. Reg. 12592 (2016),
enacted after the events herein, which limits the application of contributory
negligence to pedestrians involved in pedestrian-vehicle collisions to cases in which
the pedestrian’s “negligence is . . . [g]reater than the aggregated total amount of
negligence of all of the defendants that proximately caused” the pedestrian’s injuries.
25
The case law affirms that pedestrians always have a duty to act reasonably,
even when they have the right-of-way. See, e.g., Long, 125 A.2d at 687 (noting that
“watchfulness in several directions was required of [pedestrian] for her own safety,”
despite her right-of-way). A pedestrian’s duty, however, is only to act reasonably
under the circumstances. A pedestrian need not exercise the “greatest of care,”
Miller, 109 F.2d at 678, or “continuous and extra observation to avoid vehicles,”
Griffith, 29 F.2d at 439, even if such prudent conduct may have avoided a collision
altogether. Moreover, to act reasonably, a pedestrian need not anticipate or act in
such a way that assumes wrongful conduct of others. To the contrary, a pedestrian
may rely on his or her reasonable expectations of lawful conduct by others. See
Stager, 494 A.2d at 1311 (“[A] plaintiff is not bound to anticipate negligent conduct
on the part of others. Rather, he may assume that others will fulfill their duties.”);
Griffith, 29 F.2d at 438 (noting that a pedestrian with the right-of-way has a “right
to presume that he can pass over in safety”).
D.C. Code § 50-2204.52(a) (2012 Repl. & 2020 Supp.). The statute acknowledges
that a pedestrian’s contributory negligence, regardless of right-of-way, can bar his
or her recovery in a pedestrian-vehicle collision when the pedestrian’s negligence is
greater than that of the driver.
26
The facts of a particular case determine whether a pedestrian’s conduct may
give rise to a contributory negligence instruction. On the one hand, evidence that a
pedestrian did not see a vehicle “although it was there to be seen” does not, alone,
establish an inference of contributory negligence. Long, 125 A.2d at 687 (internal
quotation marks omitted). 14 For example, a contributory negligence instruction is
not warranted when a pedestrian, after looking both ways to cross the street, does
not again look up the street “on the chance that a negligent driver might approach
swiftly and without warning from around the corner.” Miller, 109 F.2d at 678. On
the other hand, a pedestrian’s conduct that deviates from what is reasonable or does
not conform to his or her right-of-way may support an instruction of contributory
negligence. See, e.g., Moorehead, 66 F.2d at 793-94 (noting “some conflict” as to
whether pedestrian was within the lines demarcating the crosswalk and concluding
that there was no error in the trial court’s contributory negligence instruction).
Whether conduct is reasonable is, of course, informed by whether a pedestrian
has the right-of-way and, as a consequence, the conduct he or she reasonably
14
A contrary rule would be antithetical to the fault-based principles of
contributory negligence because it would exonerate the driver in virtually every case
as, save few exceptions, whenever there is a collision with a car, the vehicle will
logically be there to be seen. Contributory negligence is not determined by whether
the pedestrian was physically able to see the vehicle, but whether the pedestrian
should be faulted for not adverting the danger it presented and acting to prevent it.
27
assumes of surrounding drivers. The District’s statutory and regulatory framework
delineates a pedestrian’s right-of-way indirectly by affirmatively regulating driver
conduct. See, e.g., D.C. Code § 50-2201.28(a) and (a-1) (requiring that drivers
“shall stop” at intersections and give pedestrians the right-of-way in certain
circumstances); 18 DCMR §§ 2208.4, 2208.6, 2221.5 (same). Therefore, a
pedestrian acts reasonably when he or she engages in conduct that comports with
these statutorily- and regulatorily-required driver obligations. While such a right-
of-way may inform a pedestrian’s conduct in certain circumstances, it does not
absolve the pedestrian of his or her continuing obligation to act reasonably. A right-
of-way does not excuse negligent conduct. Cf. Capital Trans. Co. v. Smallwood,
162 F.2d 14, 15 (D.C. Cir. 1947) (“Possession of the technical right[-of-way] to
precedence does not justify negligent insistence upon it.”). 15
15
The relevant standard civil jury instruction adequately conveys the above-
outlined principles:
Before attempting to cross a street, it is a pedestrian’s duty
to make reasonable observations to learn the traffic
conditions confronting him or her, and try to make a
sensible decision whether it is reasonably safe to attempt
the crossing. [The law does not regulate the specific
observations he or she should make, and what he or she
should do for his or her own safety, while crossing the
street. The law does, however, place upon the pedestrian
the continuing duty to exercise ordinary care to avoid an
accident.]
28
In sum, we hold that a pedestrian has a duty to act reasonably, even when he
or she has the right-of-way while crossing at an unsignalized intersection or while
using a crosswalk. A pedestrian must exercise reasonable care, and a contributory
negligence instruction is not warranted merely because a pedestrian did not use the
greatest of care. Rather, a pedestrian acts reasonably when his or her conduct
comports with the statutory and regulatory right-of-way obligations required of both
pedestrians and drivers. If a pedestrian’s conduct comports with such obligations, a
contributory negligence instruction will usually not be warranted. However, because
a right-of-way does not excuse the obligation to act with reasonable care under the
circumstances, a contributory negligence instruction may be justified when conduct
could be found to deviate from what was reasonable, taking account of all the facts,
including expectations based on the parties’ right-of-way obligations.
B. Mr. Mina was not contributorily negligent.
The Asals argue that Mr. Mina’s conduct raised a factual issue concerning
whether he was contributorily negligent. Reviewing the evidence in the light most
Standardized Civil Jury Instructions, No. 7.13 (“Pedestrian’s Duty When Crossing
Streets”).
29
favorable to the Asals, we conclude that there was no legally sufficient evidentiary
basis for a reasonable jury to find that Mr. Mina’s conduct did not meet the
applicable standard of care. See Evans-Reid, 930 A.2d at 936. We thus affirm the
trial court’s decision to direct a verdict on the issue of contributory negligence.
Typically, negligence and contributory negligence are questions of fact for the
jury. Washington v. A&H Garcias Trash Hauling Co., 584 A.2d 544, 545 (D.C.
1990). However, in the exceptional case, the evidence may be “so clear and
unambiguous that contributory negligence should be found as a matter of law.” Id.
at 547. The converse also holds, i.e., that the evidence may be so clear that
contributory negligence should be negated as a matter of law. When there is “but
one reasonable inference which may be drawn from undisputed facts,” negligence
and contributory negligence “pass from the realm of fact to one of law.” Aqui v.
Isaac, 342 A.2d 370, 372 (D.C. 1975) (per curiam).
The Asals argue that while crossing the street, Mr. Mina “failed to maintain a
proper lookout” because, after making eye contact with Ms. Rigney, he turned his
head away from the northbound traffic (i.e., the direction from which Mr. Asal was
coming) and toward the southbound traffic, and he therefore “failed to observe
oncoming traffic as he continued to cross the street.” This characterization of the
30
evidence is undisputed. The question, however, is whether Mr. Mina’s failure to
continue observing northbound traffic could support an inference that his conduct
failed to meet the required standard of care. We see no error in the trial court’s
conclusion that it could not.
The evidence demonstrates that Mr. Mina waited at the southeast corner of a
marked unsignalized crosswalk for cars to stop before attempting to cross. When
Ms. Rigney, driving northbound in the middle lane (the direction of traffic closest to
Mr. Mina), stopped to allow Mr. Mina to pass, the two made eye contact, and Mr.
Mina smiled and waved before he proceeded to cross. After ensuring that Ms.
Rigney had stopped to allow him passage, Mr. Mina began crossing and then looked
in the opposite direction, toward the southbound lanes, for oncoming traffic. He
looked northbound again after passing Ms. Rigney’s car, at which point Mr. Asal
struck him.
Mr. Mina reasonably conducted himself under the assumption, grounded on
statutory and regulatory requirements, that other drivers would fulfill the rights and
duties pertaining to his right-of-way. By looking first toward the northbound traffic
closest to him, and then turning to look toward the southbound traffic in the farther
lanes, Mr. Mina was not derelict in his duty – warranting a contributory negligence
31
instruction. Section 50-2201.28(a-1) of the D.C. Code requires a driver to stop
whenever he or she approaches in an adjacent lane or from behind another vehicle
that is stopped “at a marked crosswalk at an unsignalized intersection,” thus giving
the right-of-way to pedestrians and ensuring their safety. See also 18 DCMR
§ 2221.5. Because Mr. Mina confirmed that Ms. Rigney had stopped, he could
reasonably assume that other cars driving northbound in the other lanes would also
stop to allow him to pass, as required by § 50-2201.28(a-1). He was walking at a
normal pace, using reasonable surveillance – looking both ways – to observe traffic,
and not otherwise distracted from his goal of crossing the street. In sum, Mr. Mina
was where he had a right to be and used reasonable efforts to safely cross the street.
See Griffith, 29 F.2d at 438.
That Mr. Mina could have kept his eyes toward the northbound traffic (and
thus seen Mr. Asal’s car), waited longer to look at the southbound traffic, walked
slower, or exhibited even greater care in passing across the northbound lanes of
traffic does not create a factual dispute as to whether Mr. Mina’s conduct was
reasonable. While such conduct may reflect the greatest of care and might have
prevented or mitigated the effects of the collision, that is not the required standard.
Mr. Mina’s conduct need only have been reasonable. See Long, 125 A.2d at 687(finding no contributory negligence as a matter of law even though the vehicle “was
32
there to be seen”); Miller, 109 F.2d at 677-78 (affirming that pedestrian was
“required to use only reasonable care,” even though it was possible that “the greatest
of care on [the pedestrian’s] part might have prevented the accident”).
We conclude that there was but one reasonable inference to be drawn from
these facts. There was no legally sufficient evidentiary basis for a reasonable jury
to find that Mr. Mina’s conduct breached his duty of care. Therefore, the evidence
was clear and unambiguous such that contributory negligence was negated as a
matter of law. We find no error in the trial court’s directed verdict in Mr. Mina’s
favor on that issue.
IV. Non-Economic Damages
We are not persuaded by the Asals’ argument that the $275,000 jury award
for non-economic damages in the survival action was excessive and should be
reversed. The Asals argue that there was no evidence that Mr. Mina experienced
any pain and suffering, signaled by an audible indication (e.g., yelling or moaning),
in the approximately one-and-a-half seconds between the time Mr. Mina first turned
his attention toward Mr. Asal’s vehicle and when he lost consciousness, thus
33
warranting a lower damages award. We disagree that the jury award should be
reversed.
We review for abuse of discretion the trial court’s grant or denial of a motion
for remittitur or new trial for excessiveness of verdict. See Louison v. Crockett, 546
A.2d 400, 403 (D.C. 1988). The scope of this review is “especially narrow” because
“the trial court’s unique opportunity to consider the evidence in the context of a
living trial coalesces with the deference given to the jury’s determination of such
matters of fact as the weight of the evidence.” Campbell-Crane & Assocs., Inc. v.
Stamenkovic, 44 A.3d 924, 945 (D.C. 2012) (quoting NCRIC, Inc. v. Columbia
Hosp. for Women Med. Ctr., Inc., 957 A.2d 890, 902 (D.C. 2008) (internal quotation
marks omitted)). “When a party moves to strike a verdict as excessive, the trial court
must consider whether that verdict resulted from passion, prejudice, mistake,
oversight, or consideration of improper elements.” Id. (quoting Moss v.
Stockard, 580 A.2d 1011, 1013 (D.C. 1990) (internal quotation marks omitted)).
In a survival action, circumstantial evidence is sufficient to support an award
for the decedent’s pain and suffering. See Doe v. Binker, 492 A.2d 857, 861 (D.C.
1985). Such circumstantial evidence can include inferences drawn from the nature
of decedent’s injuries, eyewitness testimony about the moments before and after the
34
injuries, and medical expert testimony. See District of Columbia v. Hawkins, 782
A.2d 293, 304-05 (D.C. 2001); Doe, 492 A.2d at 861. For example, death by
“drowning or burning” permits “an inference of conscious pain and suffering.” Doe,
492 A.2d at 861. In Doe, a survival action arising from a fatal automobile collision,
this court affirmed a non-economic damages award of $200,000 and concluded that
“substantial circumstantial evidence . . . on the issue of pain and suffering” supported
the award, specifically testimony from eyewitnesses regarding the moments before
and after the collision and from a doctor regarding the cause of the decedent’s death.
Id. In Hawkins, another fatal automobile collision case in which the decedent was
ejected from her vehicle, landed on concrete, and severed her spinal cord, the
decedent experienced pain and suffering for only a few seconds. 782 A.2d at 298,
304-05. There, we affirmed an award of $350,000 in non-economic damages based
on the testimony of a medical expert regarding the nature of the decedent’s injuries
and the fact that she would have experienced pain for less than a minute, as well as
the testimony of an eyewitness who described the decedent as being in “a lot of
pain.” Id. at 304-05.
Here, there is substantial circumstantial evidence, similar to the evidence
presented in Doe, to sustain the non-economic damages award. Testimony from
both Mr. Asal and Ms. Rigney, as well as the video footage, conveyed the collision
35
in graphic detail. Dr. Davitt, present near the scene, saw the aftermath of the
collision and described Mr. Mina as bleeding, unconscious, and unarousable. Dr.
Sarani, Mr. Mina’s treating physician at the emergency room, testified about the
gravity of Mr. Mina’s injuries, the exhaustive medical procedures that were
attempted to revive him, and the cause of his death. 16 The Asals presented no
contrary evidence, instead arguing that there was no evidence that Mr. Mina
experienced conscious pain and suffering after hitting Mr. Asal’s windshield. In
light of substantial evidence that Mr. Mina was grievously injured immediately upon
being thrown by the impact with the vehicle, as well as inferences drawn from the
circumstantial evidence of the nature of Mr. Mina’s injuries, we cannot conclude
that the $275,000 award resulted from “passion, prejudice, mistake, oversight, or
consideration of improper elements” such that it was excessive, Stamenkovic, 44
A.3d at 945 (citation omitted), particularly because it falls within the range of awards
previously affirmed by this court in evaluating similar circumstantial evidence.
16
The Asals argue that Dr. Sarani’s testimony concerning Mr. Mina’s injuries
and the attempted medical procedures unduly prejudiced the jury, and that this
testimony was unnecessary given the parties’ stipulations concerning the medical
procedures and the amount of medical bills. They imply that the trial court
improperly admitted his testimony over objection. First, appellants do not argue that
the trial court abused its discretion in permitting the testimony of Dr. Sarani, and
therefore that issue is not before us. Second, testimony by doctors concerning the
cause of death constitutes “circumstantial evidence . . . on the issue of pain and
suffering.” Doe, 492 A.2d at 861. Therefore, such evidence was properly before
the jury to consider in determining an award of non-economic damages.
36
Because we conclude that the evidence was sufficient to sustain the non-economic
damages award, we also conclude that the trial court did not abuse its discretion in
denying the Asals’ motion for remittitur or for a new trial based on excessive verdict.
V. Judgment of Condemnation
Nationwide asserts that the trial court erred in granting the Estate’s motion for
judgment of condemnation. It argues that the Policy’s benefits are not attachable
because they are not property of the Asals, specifically in that the benefits are not yet
due because the Asals have not fully complied with a condition precedent to payment:
the Policy’s cooperation clause. We conclude first that an injured party who is
successful in an underlying suit may garnish the benefits of the judgment debtor’s
insurance policy through a writ of attachment. Second, the failure to comply with a
cooperation clause, if adequately raised and supported by evidence, serves as an
affirmative defense to liability; compliance with a cooperation clause is not, however,
a condition precedent to garnishment. For these reasons, we find that the trial court
did not abuse its discretion in granting the Estate’s motion for a judgment of
condemnation.
37
A. Writ of Attachment
In the post-judgment context, a writ of attachment is a means of enforcing a
judgment, allowing a judgment creditor “easy access to a debtor’s assets,” John C.
Flood of Md., Inc. v. Brighthaupt, 122 A.3d 937, 941-42 (D.C. 2015), i.e., “goods,
chattels, and credits,” D.C. Code § 16-544 (2012 Repl.). A judgment creditor can
also reach a debtor’s assets that are held by a third party, e.g., “in the hands of a
garnishee.” D.C. Code § 16-546 (2012 Repl.); see also Consumers United Ins. Co.
v. Smith, 644 A.2d 1328, 1351-52 (D.C. 1994). “Service of the writ on the garnishee
creates a valid lien in favor of the judgment creditor on the debtor’s property held
by the garnishee.” Smith, 644 A.2d at 1352. Obtaining that property, however,
requires the judgment creditor and garnishee to comply with certain procedures. Id.The judgment creditor can recover only by the same right and to the same
extent as the judgment debtor because the creditor merely steps into the shoes of the
debtor. See, e.g., Smith, 644 A.2d at 1356 & n.34; 38 C.J.S. Garnishment § 120
(2020) (“Generally, in garnishment proceedings, an insured’s judgment creditor
may only collect from the insurer if the insured could have enforced the policy.”);
cf. Med. Mut. Liab. Ins. Soc. of Md. v. Davis, 883 A.2d 158, 161-62 (Md. 2005)
(same, analyzing Maryland law). Thus, attachment reaches only the debtor’s
38
property held by the garnishee at the time the writ is served. See Smith, 644 A.2d at
1356. A post-judgment writ of attachment will issue even though a trial court “has
not previously decided the ownership of the asset in question, given that ownership
of the property could promptly be questioned in any case involving a third party.”
Brighthaupt, 122 A.3d at 942 (discussing the implications of a writ of attachment as
applied to assets that were fraudulently conveyed to a third party).
Following service of the writ on the garnishee and receipt of a garnishee’s
answers to the interrogatories accompanying the writ, the judgment creditor may
obtain the judgment debtor’s property held by the garnishee by requesting
condemnation by the trial court. See Smith, 644 A.2d at 1352; Super. Ct. Civ. R.
69-I(e). This process also allows the garnishee to contest the judgment debtor’s
ownership of the property, and it allows the garnishee to defend against the
attachment by filing an answer. See Brighthaupt, 122 A.3d at 942 (citing D.C. Code
§ 16-551 (2012 Repl.)); Super. Ct. Civ. R. 69-I(d). In reviewing the trial court’s
exercise of its discretion in granting a motion for judgment of condemnation, a
“critical factor” for this court to consider is “whether the garnishee was in fact
indebted to the judgment debtor or possessed any property belonging to the debtor.”
Wrecking Corp. of Am., Va., Inc. v. Jersey Welding Supply, Inc., 463 A.2d 678, 680
(D.C. 1983).
39
“The decision to enter a judgment of condemnation, however, lies in the
discretion of the trial court, and is therefore reviewable for abuse of that discretion.”
Id. (citations omitted). 17
B. Insurance Policies
Nationwide argues that the Estate is prohibited from using a writ of attachment
to obtain the Asals’ insurance proceeds because the Policy’s benefits are not the
Asals’ property. We disagree. We affirm here what has already been implied by
our prior decisions: as a general matter, the benefits of an insured’s insurance policy
can be garnished through a writ of attachment. See Peterson v. Gov’t Emps. Ins.
Co., 434 A.2d 1389, 1391 (D.C. 1981); Coleman v. Aetna Ins. Co, 309 A.2d 306,
307 (D.C. 1973).
When a party has been found liable for personal injuries arising out of an auto
collision, this court has not questioned the validity of a writ of attachment to seek
17
Although Nationwide argues that a de novo standard of review applies
(pointing to cases not applicable to the writ of attachment or garnishment context),
Wrecking Corporation of America held unequivocally that this court reviews a trial
court’s decision to enter a judgment of condemnation for abuse of discretion. 463
A.2d at 680.
40
the benefits of that party’s insurance policy. For example, in Peterson, a pedestrian-
vehicle collision case, the plaintiffs obtained a judgment in a suit for injuries, and
they subsequently secured a writ of attachment against the driver’s automobile
insurance policy carrier (GEICO) “alleging indebtedness for the amount of the
judgment under [the] automobile liability insurance policy.” 434 A.2d. at 1389. In
the garnishment action, this court reversed the trial court’s grant of a motion for
directed verdict in favor of GEICO, holding that the plaintiffs made out a prima facie
case of the insurer’s liability, which was not defeated by the plaintiffs’ failure to
introduce the insurance policy itself into evidence. Id. at 1389-91. 18 Implicit in that
holding is that the judgment creditors (the pedestrians) were permitted to use a writ
of attachment to garnish the benefits of the insurance policy owned by the judgment
18
The court found that the plaintiff proved a prima facie case of GEICO’s
liability under the insurance policy because the facts demonstrated:
(1) that GEICO issued an automobile liability insurance
policy to [the defendant-driver]; (2) that the policy was in
effect at the time of the automobile collision; (3) that
GEICO assigned a claim number to the incident and
undertook the defense of the insured in the Superior Court;
and (4) that the judgment entered against the insured was
within the liability limits of the insurance policy’s
coverage. Appellant also proved the judgment against the
insured.
Peterson, 434 A.2d. at 1390-91.
41
debtor (the driver). Similarly, in Coleman, a contested garnishment, this court did
not question that the appellant-pedestrian had filed “a writ of attachment . . . against
credits of the defendants [bus driver and his employer, who had struck them,] in the
hands of . . . Aetna Insurance Co. (Aetna-garnishee), their insurer,” 309 A.2d at 307,
though it affirmed the trial court’s judgment in favor of the insurer on other
grounds. 19 Id. at 308.
We find Peninsula Insurance Co. v. Houser, 238 A.2d 95 (Md. 1968), relied
upon by the trial court, to be particularly persuasive. In Houser, the plaintiff-
passenger, who was injured in an auto collision and obtained a judgment against the
driver, brought a writ of attachment against the driver’s insurer and won a judgment
of condemnation. Id. at 96-97. The Maryland Court of Appeals affirmed that a writ
of attachment was the proper mechanism for the plaintiff-passenger to garnish the
benefits of the driver’s insurance policy. Id. at 97-98. The court noted that “[a]
respectable majority of jurisdictions permit garnishment of an insurer by an injured
person to compel payment of his judgment.” Id. at 97 (citing Appleman, Insurance
19
The court held that the defendants (insured by Aetna) breached the
cooperation clause of the insurance policy by failing to appear at a deposition and at
trial; therefore, Aetna could deny coverage under the policy, defeating the
garnishment claim. Coleman, 309 A.2d. at 308.
42
Law and Practice § 4838 & n.34 (1942), and Restatement of Judgments § 111 cmt b
(1942)). In an attachment case, the “general rule” is:
[T]he right of the attaching creditor to recover against the
garnishee depends upon the subsisting rights between the
garnishee and the debtor in the attachment, and the test of
the garnishee’s liability is that he has funds, property, or
credits in his hands belonging to the debtor for which the
latter would have the right to sue; the [creditor] is
subrogated, as against the garnishee, to the rights of the
debtor, and can recover only by the same right and to the
same extent as the debtor might recover if he were suing
the garnishee. In other words, the [judgment creditor’s]
right to recover under the attachment in this case depends
upon and is controlled by the question of whether or not
her judgment debtor . . . could successfully maintain a suit
against the [garnishee].
Id. at 98 (quoting U.S. Fid. & Guaranty Co. v. Williams, 129 A. 660, 664 (Md.
1925)).
Here, Nationwide argues that the benefits of an insurance policy are not goods,
chattel, or credits that are subject to a post-judgment writ of attachment. Nationwide
contends that Houser is inapplicable because it interprets the Maryland rules
regarding garnishment, “which are broader than the District of Columbia’s statute
governing” garnishment. The only distinction identified by Nationwide is that the
Maryland statute expressly permits “the attachment of credits that have not matured,
while District of Columbia does not.” The Houser decision, however, did not turn
43
on whether the benefits of an insurance policy were attachable as an “unmatured
credit” (such that they may fall within Maryland’s attachment statute and not the
District’s). Rather, the court in Houser stated that attachment was the proper
mechanism because the judgment creditor’s “right to recover under the attachment
in this case depends upon and is controlled by the question of whether or not her
judgment debtor, [the insured], could successfully maintain a suit against the
[garnishee, the insurer].” 238 A.2d at 98 (quoting Williams, 129 A. at 664 (quotation
marks omitted)). 20
Consistent with Peterson, Coleman, and Houser, we hold that the benefits of
an insurance policy may be garnished through a writ of attachment. Upon entry of
20
Moreover, we are unconvinced by Nationwide’s attempt to distinguish
between the law of the District and Maryland. It is true that the language of the two
statutes differ. Compare D.C. Code § 16-544 (“An attachment may be levied upon
the judgment debtor’s goods, chattels, and credits.”), with Houser, 238 A.2d at 97
(“Md. Rule G45[a] provides that ‘(a)ny property, including a credit which has not
matured * * * in the hands of another, may be attached’”); and Md. Code Ann., Cts.
& Jud. Proc. § 3-305 (West 2020) (“An attachment may be issued against any
property or credit, matured or unmatured, which belong to a debtor.”). Under
Maryland law, “matured debt” refers to a sum that is certain and due, while
“unmatured debt” refers to property or credit in which the sum is certain, but the
time for payment has not yet occurred. Consol. Const. Servs., Inc. v. Simpson, 813
A.2d 260, 269 (Md. 2002). This court has held that a writ of attachment “will reach
sums which the garnishee unconditionally owes to the debtor at the time the writ is
served but which the garnishee has not yet posted to the debtor’s account.” Smith,
644 A.2d at 1356 n.34. Thus, it appears that the District’s attachment statute also
reaches an amount that is clearly due, though on a date that has not yet occurred –
similar to the unmatured credits identified in Maryland’s statute.
44
judgment against an insured party, the insured party’s status changes to that of
judgment debtor and its insurer’s status changes to that of garnishee, such that the
benefits of the insurance policy may be eligible for attachment and garnishment.
Therefore, the prevailing party, i.e., the judgment creditor, is entitled to recover with
an attachment to the same extent to which the judgment debtor could maintain a suit
against the garnishee.
Other authorities support our conclusion that the benefits of an insurance
policy are subject to a writ of attachment and garnishment. See 38 C.J.S.
Garnishment § 120 (“The general rules as to the garnishability of property have been
applied to various types of insurance policies.”); 6 Am. Jur. 2d Attachment &
Garnishment § 135 (2020) (“As a general rule, the right of an insured against
an insurance company under a policy of insurance on property is subject
to attachment or garnishment at the suit of creditors of the insured . . . .”); id. § 134
(2020) (“A traditional garnishment . . . against an insurer . . . assists in the recovery
of an existing judgment. The only question in a traditional garnishment is whether
the insurer-garnishee furnished coverage under the insurance policy. If so, a
garnisher may garnish that coverage to pay for the underlying judgment already
determined in a separate proceeding.” (footnotes omitted)).
45
Here, we conclude that Nationwide sits in the same position as Peninsula
Insurance in Houser, in that Nationwide indemnified the Asals against liability: it
agreed to “pay damages for bodily injury . . . for which [the Asals] became legally
responsible because of an auto accident.” Upon the trial court’s entry of judgment
on November 15, 2017, the Asals became legally responsible to the Estate because
of an auto accident; thus, the Estate became a judgment creditor under the Policy
and was entitled to recover under the Policy by the same right and to the same extent
as the Asals. Therefore, the Estate was entitled to use a writ of attachment to garnish
the benefits of the Asals’ Policy with Nationwide.
C. Cooperation Clause
Nationwide also argues that the proceeds of the Policy were not due and owing
to the Asals, and therefore not attachable, because the Asals have not yet fully
complied with the terms of the Policy’s cooperation clause – and, in fact, cannot
fully comply until the entirety of this litigation has run its course. We disagree, and
we find no authority to support Nationwide’s position.
Contractual rights that become due only upon the passage of time or upon the
happening of a certain condition, i.e., contingent debts, are not subject to
46
garnishment. See Shpritz v. District of Columbia, 393 A.2d 68, 70 (D.C. 1978);
Cummings Gen. Tire Co. v. Volpe Const. Co., 230 A.2d 712, 713 (D.C. Cir. 1967)
(“The rule is well settled that money payable upon a contingency or condition is not
subject to garnishment until the contingency has happened or the condition has been
fulfilled.” (citation omitted)). But such a contingency must be understood in context:
The possibility that a future state of things may arise
before the day of payment which will create a defense
against the recovery of the debt, which circumstances,
however, may never arise, does not render the debt
contingent. Thus, a debt is due and garnishable even
though it potentially may be defeated by a condition
subsequent, whereas a debt is not garnishable where it does
not arise until the occurrence of a condition precedent.
38 C.J.S. Garnishment § 101 (2020). This court has consistently held that, under the
District’s law, failure to comply with a non-cooperation clause acts as an affirmative
defense to garnishment. See, e.g., Nationwide Mut. Ins. Co. v. Burka, 134 A.2d 89,
91 (D.C. 1957) (“The defense of lack of cooperation is an affirmative one and [an]
insurer in asserting it has the burden of proceeding.”). As such, an insured’s breach
of a non-cooperation clause operates as a defense against garnishment, enabling an
insurer to deny coverage under its policy. See Peterson, 434 A.2d at 1391
(“However, once the plaintiff proves a prima facie case, or the defendant admits all
the facts necessary to establish the case, the burden shifts to the defendant to prove
affirmative defenses such as forfeiture of the policy or breach of some contract
47
provisions by the plaintiff.”); Coleman, 309 A.2d at 308 (affirming denial of
coverage under insurance policy in garnishment action because insurer proved that
insured breached cooperation clause).
In Nationwide Mutual Insurance Co. v. Thomas, 306 F.2d 767, 769 (D.C. Cir.
1962) (per curiam), the court affirmed that Nationwide Mutual Insurance was
required to pay the benefits of an insured’s policy to a judgment creditor in a
garnishment proceeding, for the reasons stated by the trial court. The trial court
began with the premise that the plaintiffs “may only recover from Nationwide, the
garnishee, if [the defendant-policyholder] can recover from Nationwide, as they –
the plaintiffs – stand in the shoes of the policyholder and enjoy no better rights than
he does.” Thomas v. Otis, 199 F. Supp. 1, 3 (D.D.C 1961), aff'd sub
nom. Nationwide Mut. Ins. Co. v. Thomas, 306 F.2d 767 (D.C. Cir. 1962) (per
curiam). The trial court reasoned that the defendant’s “violation in a substantial
manner” of the insurance policy’s cooperation clause may “be prejudicial in effect
to the insurer” such that it “relieves the latter of all liability.” 199 F. Supp. at 3.
While the court concluded that the defendant had indeed violated the cooperation
48
clause, it ruled that Nationwide had waived the defense by appealing the judgment
on its merits without reserving any rights to the defense. Id. at 3-4. 21
Pursuant to Part E of the Policy, Nationwide may deny coverage “if failure to
comply with the [cooperation clause] is prejudicial to [it].” Thus, the cooperation
clause may bar the Estate from recovering the benefits of the Asals’ Policy if
Nationwide can prove that the Asals breached the Policy’s cooperation clause in a
21
It may be that a choice-of-law analysis requires that this question be
answered by application of Virginia law. Nationwide delivered the Policy to the
Asals in Virginia for a vehicle they owned in Virginia, and therefore Virginia law
may govern interpretations of the Policy. See Vaughn v. Nationwide Mut. Ins. Co.,
702 A.2d 198, 200-04 (D.C. 1997) (applying Maryland law – pursuant to the
District’s choice-of-law analysis – to interpret benefits of automobile liability policy
that covered vehicle and policyholder residing in Maryland, even though the
underlying collision occurred in the District). In such a circumstance, however, we
find Virginia law to be consistent with that of the District.
Under Virginia law, an insurer bears the burden of establishing “the
affirmative defense of non-cooperation,” and the insurer must prove that the failure
to cooperate “prejudiced the insurer in the defense of an action for damages arising
from the insured’s operation of a motor vehicle.” State Farm Mut. Auto. Ins. Co. v.
Porter, 272 S.E.2d 196, 199 (Va. 1980); see also Erie Ins. Exch. v. Meeks, 288
S.E.2d 454, 456-57 (Va. 1982); RML Corp. v. Assurance Co. of Am., 60 Va. Cir.
269, 2002 WL 32075213, at *2 (Va. Cir. Ct. Oct. 25, 2002). Thus, as under District
of Columbia law, Virginia law recognizes non-cooperation as an affirmative
defense. By contrast, Virginia courts have characterized other types of contract
provisions – including “giving of notice of the accident,” “giving of notice of suit,”
and “forwarding of suit papers” – as “conditions precedent” to coverage under a
policy, requiring substantial compliance by the insured prior to triggering the
insurer’s obligation to defend. Meeks, 288 S.E.2d at 456-57.
49
way that was prejudicial to Nationwide. The cooperation clause is not a condition
precedent that requires compliance prior to filing a writ of attachment to garnish the
Policy’s benefits; rather, it serves as a mechanism for Nationwide to affirmatively
defend against liability. Moreover, Nationwide must establish prejudice. We find
no merit to Nationwide’s argument that the Policy’s benefits can only be attached
once Nationwide is able to assess the Asals’ cooperation at the end of the underlying
suit, after any and all appeals have run their course. Here, Nationwide has neither
alleged nor provided evidence of any alleged non-cooperation by the Asals, let alone
any prejudice stemming from that non-cooperation. Therefore, Nationwide failed to
plead an affirmative defense that would establish a bar to the Estate’s recovery
pursuant to the judgment of condemnation. 22
Because the record is devoid of any evidence of the Asals’ non-cooperation
that prejudiced Nationwide, we find no abuse of discretion by the trial court in ruling
in favor of the Estate on its garnishment claim.
22
Nationwide also argues that Part F of the Policy, prohibiting the Asals from
bringing any legal action against Nationwide “until there has been full compliance
with all the terms,” prohibits the Estate from garnishing the Policy’s benefits. They
argue that at the time the Estate served the writ, “the Asals could not maintain an
action against Nationwide, because the ongoing litigation precluded full compliance
with the terms of the Asals’ policy.” This argument fails for the same reasons
discussed above.
50
VI. Conclusion
For the reasons discussed, the trial court’s judgment is hereby affirmed.
So ordered.
THOMPSON, Associate Judge, dissenting in part: As described in the opinion
for the court, at the close of the defense case in this matter, the trial court announced
that it would not give a contributory negligence instruction and then directed a verdict
in favor of the plaintiff Estate, reasoning that a pedestrian “has a right to assume that
the vehicle . . . is going to stop because that’s the law.” Defendants/appellants, the
Asals, contend that the trial court erred in failing to submit to the jury the issue of
decedent George Mina’s contributory negligence. I agree that this was an issue for
the jury. I respectfully dissent from the majority opinion insofar as it holds that no
reasonable juror could have concluded that Mr. Mina was contributorily negligent.
The majority opinion acknowledges that the law in our jurisdiction is that a
pedestrian “has a duty to exercise reasonable care for the protection of his or her own
safety[,]” Lyons, 667 A.2d at 322, even when the pedestrian has the right-of-way,
which Mr. Mina indisputably had when he crossed Wisconsin Avenue in the
51
crosswalk at its unsignaled intersection with Veazey Street. Supra at 3. My
colleagues in the majority also say that they “reject” the Estate’s argument that a
pedestrian, once legally crossing within the crosswalk, has “no duty to continually
observe for traffic which was legally required to stop in advance of the crosswalk.”
Supra at 16. They nevertheless conclude that the trial court did not err in directing a
verdict in favor of Mr. Mina’s Estate. They do so even though it is undisputed (and
the jury could have found from the video evidence) that Mr. Mina turned his head
away from oncoming traffic in the innermost northbound traffic lane he was about to
cross, and looked instead toward traffic approaching in the more distant southbound
lanes.
The court arrives at its conclusion in part by relying on D.C. Code ⸹ 50-
2201.28(a-1), which requires a driver to stop whenever he or she approaches in an
adjacent lane, or from behind, another vehicle that is stopped “at a marked crosswalk
at an unsignalized intersection,” and which thereby gives the right-of-way to
pedestrians. The court concludes that this provision, which is implicated by the
situation Mr. Asal faced as he approached the intersection involved here, 23 “informs
Mr. Asal testified, however, that from his “low” vehicle he did not see Mr.
23
Mina or any pedestrian in the intersection, and further testified that he thought at the
time that the vehicle in the lane to his right (driven by a Ms. Rigney) was slowing to
execute a right turn rather than stopped to allow a pedestrian to cross (though he
acknowledged that video footage shows that Ms. Rigney’s car had in fact stopped).
52
whether [a pedestrian’s] conduct [in a particular case] is reasonable.” The court also
relies on the “general proposition” that a pedestrian in a crosswalk may rely on the
expectation of lawful conduct by drivers and need not anticipate or act in such a way
that assumes wrongful conduct of others. Supra at 17. For that proposition, the
court relies on Stager v. Schneider, 494 A.2d 1307, 1311 (D.C. 1985) (“[A] plaintiff
is not bound to anticipate negligent conduct on the part of others[,]” but rather “may
assume that others will fulfill their duties.”), and Griffith v. Slaybaugh, 29 F.2d 437,
438 (D.C. Cir. 1928) (stating that a pedestrian with the right-of-way has a “right to
presume that he can pass over in safety”).
Notably, however, Stager, as well as the only other opinion I have been able
to find from our jurisdiction that articulates the proposition about “assum[ing] that
others will fulfill their duties,” involved the plaintiff’s reliance on a professional to
perform his or her professional obligations, rather than a pedestrian’s reliance on a
driver’s adherence to traffic rules. The issue in Stager was whether a patient could
rely on the radiologist who interpreted her pre-operative chest x-ray to inform her of
the lung abnormality shown on the x-ray, or whether instead, in order not to be
contributorily negligent, the patient had a duty to call and obtain the x-ray result. Id.
at 1311. This court answered that the patient could rely on the radiologist, explaining
first that “[a] reasonable person need not go through life timidly, seeking to guard
53
against that which is only remotely probable and not to be feared except by the overly
cautious.” Id. We refused to “transfer[] [the duty] from the health professional to
the patient[,]” and we cited the “ordinar[y]” rule that “a patient can rely on a doctor’s
informing her if the results of a test are positive.” Id. at 1311-12. We also noted that
the patient, who had a family history of lung cancer, had previously had annual x-
rays and “was always informed of the results of these x-rays[.]” Id. at 1311.
This court’s reasoning was similar in Bell v. Jones, 523 A.2d 982 (D.C. 1986).
In that case the plaintiff architect and his company had engaged a professional
engineer/surveyor to prepare a plat showing the property lines of a plot on which
plaintiffs planned to construct townhouses. Id. at 997. The issue was whether the
plaintiffs could rely on the surveyor to show precise angle measurements on the plat.
Id. We reasoned that the architect was not bound to anticipate negligence on the part
of the professional surveyor, but could reasonably assume that the surveyor would
fulfill his duties, including the duty to exercise reasonable care in certifying the angle
measurements. Id. I do not believe that either Bell or Stager, with their focus on
professional duty, is helpful in resolving the present case.
As noted, the majority opinion also cites the D.C. Circuit’s 1928 opinion in
Griffith for what my colleagues refer to as its “clear expression of the law” regarding
54
pedestrian right-of-way: that “the one first entering [a street intersection] has the
right to presume that he can pass over in safety and is not required to exercise
continuous and extra observation to avoid vehicles using such street.” Griffith, 29
F.2d at 438 (quoting Riddel v. Lyon, 213 P. 487, 489 (Wash. 1923)). 24 Actually, the
Griffith court referred to the rule it articulated as “a clear expression of the law as
announced in many cases touching the right of way of pedestrians at crossings
controlled either by a traffic officer or signals.” 29 F.2d at 438 (italics added).
Griffith itself involved a signalized crosswalk under the direction of a traffic officer
and addressed the issue of whether the pedestrian had a right-of-way to complete his
street crossing once the signal changed. See 29 F.2d at 439. The facts of Riddel, the
24
Of the D.C. Circuit opinions cited in the majority opinion, Griffith appears
to be the only one that applied an unqualified “general proposition” about a
pedestrian’s entitlement to assume that drivers will obey the law in the situation it
described. The other cited D.C. Circuit opinions did not do so. In American Ice Co.
v. Moorehead, 66 F.2d 792 (D.C. Cir 1933), the D.C. Circuit approved an instruction
that “in effect told the jury that, notwithstanding the obligation imposed by the traffic
regulation upon the driver of an automobile to be watchful in avoiding injury to
pedestrians lawfully using a street intersection, if the pedestrian was himself guilty
of any act of negligence -- which the court was careful to tell the jury was the
omission to do anything which a reasonable person, guided by those ordinary
considerations which regulate human conduct, would do in the circumstances -- such
act of negligence would defeat a recovery.” Id. at 793-94. In Miller v. Clark, 109
F.2d 677 (D.C. Cir. 1940), the D.C. Circuit affirmed the trial court’s denial of a
motion for a directed verdict on the issue of a pedestrian’s contributory negligence
because “reasonable care did not necessarily require [the pedestrian], before or after
entering the crosswalk, to look again up [the street] on the chance that a negligent
driver might approach swiftly and without warning from around the corner.” Id. at
678 (italics added).
55
1923 Supreme Court of Washington opinion on which Griffith relied, are remarkably
similar. See 213 P. at 488. Neither Griffith nor Riddel, says anything about a
pedestrian’s duty to look out for traffic mid-crossing when (as was the case here)
there is no traffic signal or traffic officer. 25 For these reasons, Griffith is not binding
in the present case, and neither Griffith nor Riddel is apposite.
In addition, Riddel provides weak support at best for affirming the directed
verdict in this case, because its persuasive force has been significantly diminished
by several later rulings of the Washington Supreme Court. For example, in Shasky
v. Burden, 470 P.2d 544 (Wash. 1970), the Supreme Court of Washington held that
“there was substantial evidence requiring the court to submit to the jury the issue of
plaintiff’s contributory negligence” where the plaintiff pedestrian, who was struck
by a vehicle in a crosswalk, had “walked rapidly with her head turned away from
25
Moreover, as recognized in Long v. Mercer, 125 A.2d 685 (D.C. 1956),
even with respect to a signalized crosswalk, Griffith did not foreclose a finding of
pedestrian contributory negligence as a matter of law. See 125 A.2d at 686-87(reasoning that although the pedestrian, who had not finished crossing at a signalized
intersection when the traffic light “changed to red against her,” had the right-of-way,
“watchfulness in several directions was required of plaintiff for her own safety[,]”
such that the trial court did not err in denying directed verdicts; stating that it was
“rather plainly a question of fact” whether the plaintiff pedestrian’s negligence was
a contributing factor to the accident).
56
oncoming traffic and made no attempt whatever to see if any vehicles were
approaching the crosswalk on that dark, rainy night.” Id. at 547. The court stated,
Strong as the protection afforded by the crosswalk may be
and however unlikely that a pedestrian struck in a
crosswalk would be contributorily negligent, there
nevertheless remains in the law a legal possibility that a
pedestrian, . . . struck by a vehicle while in a marked
crosswalk, may have been contributorily negligent. If
there is evidence to support the issue, the court must
submit the issue of contributory negligence to the jury.
Id. at 548. Similarly, in Oberlander v. Cox, 449 P.2d 388 (Wash. 1969), the
Washington court considered the evidence that the plaintiff pedestrian, crossing the
street during a storm and driving rain, “walked rapidly, but, having looked once, did
not look either way again until she was struck by defendants’ car.” 449 P.2d at 389.
The court held that the evidence “suppl[ied] some substantial evidence from which
a jury could infer contributory negligence[,]” such that the issue should go to the
jury. Id. at 391; see also Clements v. Blue Cross of Wash. & Alaska, Inc. 682 P.2d
942, 948 (Wash. 1984) (“There was substantial evidence presented to support
defendants’ position that Clements should have known to look for oncoming traffic
even though she was legally in the crosswalk. It was error to refuse to instruct the
jury on contributory negligence and [instead] to direct a verdict on liability.”).
57
The law as it has evolved in Washington State after Riddel appears to state
“[t]he generally accepted” and “quite universal” rule: “that a pedestrian’s failure to
keep a constant lookout, or to look again after having determined that he can safely
cross ahead of approaching traffic, is not contributory negligence as a matter of law
but it is a question for a jury whether he was in the exercise of ordinary care for his
own safety.” Moran v. Gatz, 62 N.E.2d 443, 446 (Ill. 1945) (collecting cases).
In the present case, my colleagues in the majority conclude that there was no
legally sufficient evidentiary basis for a reasonable jury to find that Mr. Mina was
contributorily negligent. I conclude to the contrary that there was sufficient evidence
in this case for the issue of contributory negligence to be “one for the jury.” Id.First, it was undisputed that Mr. Mina worked in the same block (the 4200
block of Wisconsin Avenue) where the accident occurred. This suggests that he may
have been familiar with the practices of drivers at the crosswalk, including whether
they reliably stop for pedestrians in the crosswalk. Therefore, one piece of evidence
that might have been notable to the jury is the evidence that, before beginning to
cross the street, Mr. Mina looked to his left and made eye contact with Ms. Rigney,
who brought her car to a stop in the traffic lane closest to him, and only thereafter
proceeded to cross. This was “some evidence” from which the jury could infer that
58
Mr. Mina understood that vehicles approaching the intersection might not stop for
him despite their legal duty to do so. 26 Abebe v. Benitez, 667 A.2d 834, 836 (D.C.
1995) (per curiam) (“As long as there is some evidence from which jurors could find
that the party has met its burden, a trial judge must not grant a directed verdict.”).
Second, Mr. Asal testified that he knew the area near the intersection well
because he passed through it every day driving to his job at a restaurant located
approximately four blocks away. He further testified that, in his experience, many
cars make a right turn at the intersection in question in order to park in the rear of a
restaurant located there. He testified that most drivers “make a right [turn] from the
middle [northbound] lane” because there is usually a “bus stop[ping at the bus stop]
or a bike” in the right lane. Mr. Asal also told the jury that he thought that Ms.
Rigney’s car was slowing to turn, and that her car “blocked his view of the
pedestrian.” Had jurors credited Mr. Asal’s testimony about practices at the
intersection in question, that might have influenced their determination about
whether Mr. Mina “should have known” of a need for “increased vigilance” at the
Veazey Street crosswalk, and about whether he breached his duty to exercise such
vigilance by looking away from the traffic in the innermost northbound lane as he
26
See D.C. Code ⸹ 50-2201.28(a) (“The driver of a vehicle shall stop and
remain stopped to allow a pedestrian to cross within any marked crosswalk . . . .”).
59
was about to cross that lane. Clements, 682 P.2d at 948.
Third, jurors could have evaluated the foregoing evidence in light of their
experience. A Washington Post article from October 1988 reported that during an
hour-long observation period, “[n]ot one car” stopped at the crosswalk at 16th and
Fuller Streets, N.W., to let pedestrians cross. It further reported that “[t]his familiar
routine occurs daily around the District[.]” 27 An article and video posted online
nearly thirty years later (in 2016) suggest that the problem may have persisted around
the time of the incident involved in this case: the video captured what happened when
a police officer posing as a pedestrian tried to cross 14th Street near U Street, N.W.
The article reported that when a black car approached the officer standing in the
crosswalk, the black car “bl[e]w past him.” 28 Jurors may have had their own
experiences with or knowledge of similar occurrences, perhaps causing them to
understand that, in the District of Columbia, incidents of drivers not stopping at
27
See Kristin Eddy, PEDESTRIANS BEWARE D.C. DRIVERS FAIL TO
YIELD TO CROSSWALKS, LAW, The Washington Post (Oct. 11, 1988),
https://www.washingtonpost.com/archive/local/1988/10/11/pedestrians-beware-dc-
drivers-fail-to-yield-to-crosswalks-law/ae0925ad-d741-40e4-a451-05a7fb8a69a3/
https://perma.cc/LUR9-G9L5 (last visited March 12, 2021).
28
See Dan Taylor, Here’s Why It’s a Bad Idea to Blow Through a Crosswalk
in DC [VIDEO], Crime & Safety (Apr. 26, 2016, 4:03 PM),
https://patch.com/district-columbia/washingtondc/heres-why-its-bad-idea-blow-
through-crosswalk-dc-video https://perma.cc/SDC6-EQME (last visited March 12,
2021).
60
crosswalks to yield the right of way to pedestrians may be expected. Such incidents
are not merely “remotely probable[,]” Stager, 494 A.2d at 1311, and jurors’
experience and knowledge regarding the same might have informed their judgment
as to whether Mr. Mina acted reasonably in assuming, contrary to (possible) common
experience, that any vehicle in the innermost northbound lane would stop at the
crosswalk just because its driver saw the vehicle in the adjacent lane slowing to a
stop. This discussion shows why it was a jury question whether Mr. Mina’s looking
away from oncoming traffic in the lane he was about to cross satisfied his obligation
to exercise reasonable care for the protection of his safety. Jurors might reasonably
have disagreed with the reasoning of my colleagues that once Mr. Mina confirmed
that Ms. Rigney had stopped, he could “reasonably assume that other cars driving
northbound in the other lanes would . . . stop to allow him to pass, as required by
§ 50-2201.28(a-1).” 29 Supra at 31.
To be clear, I agree that Mr. Asal had a legal duty to stop regardless of any
assumption that the vehicle to his right (Ms. Rigney’s car) was stopping or slowing
29
Cf. Wood v. Bellingham, 813 P.2d 142, 145-46 (Wash. Ct. App. 1991)
(reasoning that where the plaintiff pedestrian, who failed to make eye contact with
the driver who subsequently hit her, “exercised her right of way as if it were
absolute[,]” “a jury could reasonably conclude that [her] action in assuming the
vehicle had stopped for her and proceeding to cross . . . without heeding the driver’s
apparent inattention constituted a failure to exercise due care[,]” and thus that “the
trial court did not err in submitting the issue to the jury”).
61
to execute a turn; the consequence of his failure to do so was tragic and is horrific to
watch on the surveillance video that captured the accident. But the evidence and
considerations I have described are relevant to whether Mr. Mina exercised
reasonable care for the protection of his safety by omitting to do something “which a
reasonable person, guided by those ordinary considerations which regulate human
conduct, would do in the circumstances.” American Ice Co., 66 F.2d at 793-94. The
issue “was for consideration by the factfinder.” Lyons, 667 A.2d at 323.