About the Publisher: The D.C. Law Report is published by Douglas C. Melcher who is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.

About the Publisher: The D.C. Law Report is published by Douglas C. Melcher who is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.

» On April 12, 2013, the Judicial Nomination Commission announced that it is seeking comments regarding persons who have applied for a judicial vacancy created due to the retirement of Judge A. Franklin Burgess Jr. of the Superior Court of the District of Columbia. To read the JNC’s announcement, click here.

» On April 11, 2013, the Commission on Judicial Disabilities and Tenure announced that it is beginning a review of Judges A. Franklin Burgess Jr. and Natalia M. Combs Greene of the Superior Court of the District of Columbia. Both of these judges are retiring and are seeking recommendations from the CJDT for appointments as Senior Judges. To read the CJDT’s announcement, click here. To retrieve a biographical statement about Judge Burgess from the Superior Court’s website, click here. For Judge Greene’s biographical statement, click here.

About the Publisher: The D.C. Law Report is published by Douglas C. Melcher who is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.

About the Publisher: The D.C. Law Report is published by Douglas C. Melcher who is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.

The Court of Appeals began its discussion of this issue by placing the plaintiff’s “contemptuous behavior” in context. Id. at 10. It stated that the plaintiff “availed himself of the District of Columbia courts to obtain relief for alleged wrongs” and, “[i]n pursuit of those claims, . . . engaged in litigation that consumed substantial resources in the trial court, resulting in a docket sheet with over 300 entries in two years.” Id. It further stated that “[t]he trial court made painstaking efforts to provide a fair trial, investing substantial court and judicial resources,” but, “after demanding and receiving substantial time and attention from the trial court, [his] attitude in return was one of flagrant contempt, whereby he deliberately disregarded orders of the trial court and exhibited an attitude of disrespect to the trial judge and the administration of justice.” Id. It found his behavior “particularly troubling because [the plaintiff] is himself an attorney.” Id.

The Court of Appeals described in detail the plaintiff’s “contemptuous behavior.” Id. at 10-13. It stated that the plaintiff “testified falsely, denying authorship of an email originating from his email account to [the defendant].” Id. at 10. It further stated that when the defendant confronted the plaintiff with a Bar Counsel complaint about the defendant, “to which [the plaintiff] had attached the very same email,” he “refused to answer any questions, claiming that his complaint to Bar Counsel . . . was confidential.” Id. at 11. The plaintiff responded the same when the defendant “attempted to confront [him] with other emails that [he] had also attached to his bar complaint.” Id. The trial court expressly ruled that the complaint was admissible in evidence and ordered the plaintiff to respond to questions about the emails attached to it. Id. at 11-12. Nonetheless, the plaintiff continued to refuse to answer questions about the emails. Id. at 12. The trial judge then explained to the plaintiff “the seriousness of his refusal to comply with the court’s orders,” including the possibility that she could dismiss his lawsuit as a sanction. Id. at 12-13. After receiving this warning, the plaintiff “refused to answer no fewer than twenty-one questions, all of which the trial court ordered him to answer.” Id. at 13.

Based on these facts, the Court of Appeals concluded that it would have been proper for the trial judge to dismiss the plaintiff’s lawsuit, pursuant to Super. Ct. Civ. R. 41(b), as a sanction for the plaintiff’s “contemptuous behavior.” Id. at 10-15. It stated that “[w]here a party ‘engages in conduct utterly inconsistent with the orderly administration of justice,’ we have recognized that dismissal is an appropriate sanction.” Id. at 14 (brackets and internal quotation marks omitted; quoting Synanon Found. Inc. v. Bernstein, 503 A.2d 1254, 1264 (D.C. 1986)). It further stated that, “while ‘dismissal is an extreme sanction which should be granted only sparingly or in extraordinary circumstances,’ the trial court has authority to dismiss an action when a plaintiff fails to comply with an order of the court.” Id. (brackets and internal citation omitted; quoting District of Columbia v. Serafin, 617 A.2d 516, 519 (D.C. 1992)). The Court of Appeals concluded that “‘[t]he face-to-face refusal to comply with the court’s order itself constituted an affront to the court, and when that kind of refusal disrupts and frustrates an ongoing proceeding, as it did here, the contempt power is and must be available to vindicate the authority of the court as well as to provide the recalcitrant witness with some incentive to testify.’” Id. at 15 (brackets omitted; quoting United States v. Wilson, 421 U.S. 309, 316 (1975)). The Court of Appeals further concluded that, “[i]n this case, although the trial judge declined to dismiss the action out of an abundance of caution,” and instead sanctioned the plaintiff by instructing the jury that “it could conclude that any testimony [the plaintiff] would have given about his bar complaint would have been unfavorable to his case,” “she would have acted well within her discretion to” dismiss the plaintiff’s lawsuit. Id. at 13, 15. The Court of Appeals reiterated that “there is no bar to imposing the ultimate sanction of dismissal when the court is faced with a long and continuing disobedience of its orders,” and, “[i]ndeed, where the record reflects a deliberate and contumacious disregard of the court’s authority, as it does in this case, we will not hesitate in affirming the trial court’s discretionary decision to dismiss as a sanction.” Id. at 45-46.

To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

About the Publisher: The D.C. Law Report is published by Douglas C. Melcher who is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.

In this case, the plaintiff alleged that she “became ill, with symptoms including slurred speech, loss of balance, and vomiting.” Id. at 2. In response to an emergency call, a District of Columbia ambulance crew arrived at the scene and evaluated the plaintiff. Id. The ambulance crew concluded that the plaintiff “became ill because she had recently stopped smoking cigarettes” and advised her that “it was not necessary to transport her to a hospital emergency room for further evaluation or treatment.” Id. at 2-3. Relying on this advice, the plaintiff did not immediately seek further medical attention. Id. at 3. The next morning, however, the plaintiff became ill again and was transported to a hospital where she was diagnosed as having suffered a stroke. Id. The plaintiff subsequently filed a negligence claim against the District alleging that “her medical condition had been worsened by her reliance on an incorrect diagnosis provided to her by District personnel.” Id. The trial court dismissed the plaintiff’s claim pursuant to the public duty doctrine. Id.

On appeal, the Court of Appeals considered whether the public duty doctrine barred the plaintiff’s negligence claim; specifically, whether the plaintiff’s allegations established the existence of a “special duty” owed by the District to the plaintiff. Id. at 7-16. The Court of Appeals held that the plaintiff’s claim was barred because no such “special duty” existed. Id. In reaching this result, the Court of Appeals primarily relied on two prior published opinions in which it “held that the public-duty doctrine barred a [negligence] claim” premised on a plaintiff’s alleged reliance “upon actions taken by District emergency personnel in providing the kind of on-the-scene emergency assistance that the District normally provides to the general public.” Id. at 12 (citing Warren, supra, and Miller v. District of Columbia, 841 A.2d 1244 (D.C. 2004)). The Court of Appeals concluded that the plaintiff’s claim “takes the same form” and therefore was “barred by the public-duty doctrine.” Id. Accordingly, the Court of Appeals affirmed the dismissal of the plaintiff’s claim. Id. at 17.

Although the panel of judges considering this case unanimously affirmed the trial court’s dismissal, one judge wrote a separate concurring opinion “to urge [the Court of Appeals], sitting en banc, to reexamine the scope of the public duty doctrine or perhaps even to abolish it.” Id. at 18. The concurring opinion is quite detailed but the gist of the concerns expressed therein is that the Court of Appeals has “let the [public duty] doctrine sweep far more broadly than is necessary to strike the proper balance between protecting the District from sweeping liability, on the one hand, and allowing the District’s citizens the chance to prove that their government has failed them miserably, on the other.” Id. at 18. The concurring opinion states, inter alia, that “[i]t is quite difficult to understand why an individual citizen after being examined [by the District's emergency medical technicians], has no right to rely on . . . [them] to accurately diagnose his or her medical condition or rely on their recommendation as to whether or not further medical assistance is needed . . . .” Id. at 23.

To retrieve an electronic copy of the majority opinion and the concurring opinion from the Court of Appeals’ website, click here.

About the Publisher: The D.C. Law Report is published by Douglas C. Melcher who is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.

The Court of Appeals affirmed the trial court’s judgment, concluding that the District was entitled to summary judgment for two independent reasons. First, it agreed with the District’s contention that “the defect in the curbstone was so minor that [the District's] failure to repair it was, as a matter of law, not negligent.” Id. at 4. The Court of Appeals explained that, “‘although the District of Columbia has a duty to maintain its streets in a reasonably safe condition . . . it is not an insurer of safety of those who utilize its streets and sidewalks.’” Id. at 4 (alteration in original; quoting Rajabi v. Potomac Elec. Power Co., 650 A.2d 1319, 1322 (D.C. 1994)). It further explained that minor defects in streets are not unusual, and “[t]hus, even if the District has notice of an alleged defect, it is entitled to judgment as a matter of law when the alleged defect that caused the plaintiff’s injury was insignificant in nature.” Id. at 5. Applying these principles to the record evidence, which included photographs of the defective curbstone, the Court of Appeals concluded that, as a matter of law, ”any defect in the curbstone was de minimis, and . . . appellant therefore cannot prevail on her negligence claim against the District.” Id. at 6.

Second, the Court of Appeals agreed with the District’s contention that the District “was under no obligation to undertake any repair because it had no notice, either actual or constructive, of the defect.” Id. at 4. The Court of Appeals explained that, to establish liability, the appellant was required to show that “‘her injuries were caused by an unsafe or defective condition . . . of which the District had timely notice, either actual or constructive.’” Id. at 7 (alteration in original; quoting Williams v. District of Columbia, 646 A.2d 962, 963 (D.C. 1992)). The appellant essentially conceded that the District did not have actual notice of the defective curbstone, thus leaving only the issue of constructive notice. Id. With respect to that issue, the Court of Appeals concluded that, as a matter of law, the District did not have constructive notice because (1) as shown by photographs of the defective curbstone, “the nature of the defect [was] de minimis“; and (2) as shown by appellant’s own declaration, “the [defective] condition [of the curbstone] was not obvious.” Id. at 8-9.

In addition to considering the merits, the Court of Appeals considered the appellant’s contention that she “was prejudiced by the trial court’s refusal to allow further discovery” which she needed to respond fully to the District’s motion for summary judgment. Id. at 10. The Court of Appeals rejected the appellant’s contention for various reasons, including that the appellant “failed to file an affidavit pursuant to Super. Ct. Civ. R. 56 (f) explaining how discovery would enable her effectively to oppose the District’s motion.” Id. at 10-11. It explained that “[w]hen a non-moving party fails to file a Rule 56 (f) affidavit showing how further discovery would provide ‘facts essential to justify . . . [her] opposition,’ and instead merely asserts that she ‘was unable to effectively oppose the summary judgment motion because [s]he was denied discovery,’ this court will not disturb a trial court’s order granting summary judgment.” Id. at 11 (alterations in original; quoting McAllister v. District of Columbia, 653 A.2d 849, 852-53 (D.C. 1995)).

To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

About the Publisher: The D.C. Law Report is published by Douglas C. Melcher who is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.