Suzanne Whitt v. American Construction, P.C. , 157 A.3d 196 ( 2017 )

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CV-1199
SUZANNE WHITT, APPELLANT,
V.
AMERICAN PROPERTY CONSTRUCTION, P.C., et al., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CAB-6365-13)
(Hon. Stuart G. Nash, Trial Judge)
(Argued January 24, 2017 Decided April 6, 2017)
Ursula Werner for appellant.
Nicholas Andrews, with whom Amy Leete Leone was on the brief, for
appellee American Property Construction, P.C.
Troy A. Priest, with whom Jean Marie Sylla, Jr., and Del Wright, Jr., were
on the brief, for appellee Washington Gas Light Company.
Before BLACKBURNE-RIGSBY, Chief Judge,* FISHER, Associate Judge, and
FERREN, Senior Judge.
*
Chief Judge Blackburne-Rigsby was an Associate Judge of the court at the
time of argument. Her status changed to Chief Judge on March 18, 2017.
2
FISHER, Associate Judge: Suzanne Whitt appeals from Superior Court
judgments rejecting her claims for tortious interference with business relations,
intentional infliction of emotional distress (“IIED”), and negligence. She argues
that the trial judge erred by omitting a proposed jury instruction, by dismissing her
negligence claim after applying the “economic loss doctrine,” by disqualifying one
of her attorneys, and by directing verdicts for appellee Washington Gas Light
Company (“Washington Gas”) while limiting the scope of her claims against
appellee American Property Construction, P.C. (“APC”). We affirm the trial
judge’s disqualification of appellant’s attorney. However, we reverse the trial
court’s rulings regarding the proposed jury instruction, the economic loss doctrine,
one of the directed verdicts for Washington Gas, and the limitation of the factual
predicate on which APC’s liability was determined. We remand for further
proceedings on all claims except IIED.
I. Background
From 2011 to 2013, Washington Gas and APC, along with two former
defendants in this case—660 Pennsylvania Avenue Associates, LLC (“660 Penn”),
and Stanton Development Corporation (“Stanton”)—undertook a construction
3
project next to appellant’s hair salon at 323 7th Street, S.E.1 660 Penn owned the
properties under construction, Stanton was a development company, APC served
as general contractor, and Washington Gas allegedly was responsible for
excavating the alley, laying a gas line, and re-paving the alley.2
On July 1, 2011, 660 Penn obtained a permit that allowed it to close a
section of the public alley to perform the construction. The permit specified that
660 Penn “[w]ill not block access via C Street or business entrances of 7th Street
alley.”
The principal entrance to appellant’s salon was in the 7th Street alley.
Customers could reach the entrance by walking down the alley to a staircase near
the back of a townhouse. That staircase led up to appellant’s salon, which was on
the second floor. Although there technically was another entrance via the first
floor of the building—which would not require one to enter the alley—appellant
was not on good terms with the owners of the store on that floor, and one of the
1
Appellant has settled her claims against 660 Penn and Stanton.
2
Washington Gas has disputed the extent of its role, as we will discuss
when analyzing appellant’s agency arguments.
4
owners testified that he was not aware of any lease terms that would require him to
allow appellant to use that entrance.
Viewed in a light favorable to her, the evidence showed that appellant
encountered many problems during construction. For instance, the activity of
workers and the presence of trash, construction equipment, and other
miscellaneous items made it difficult to navigate the alley. At times, construction
vehicles were parked directly in front of the salon entrance, filling the narrow alley
so as to make access difficult, if not impossible. Road signs warning of
construction activity were placed at the alley’s entrance. During one multi-week
stretch, the entire entrance to the alley was blocked off with yellow “caution” tape
and red cones, bricks were stacked near the entrance to the alley, and black plastic
sheets covered the surface of the alley leading to appellant’s salon. Witnesses also
testified that a port-a-potty emitting noxious odors and leaking a bluish liquid was
placed near appellant’s door.
Appellant complained to Stanton, APC, and her city councilmember’s
office, but the situation did not improve. She alleged that she steadily lost
customers due to these problems and incurred approximately $265,000 in losses.
She ultimately closed the salon and moved to South Carolina.
5
Appellant filed suit in the Superior Court against 660 Penn, Stanton, APC,
and Washington Gas, alleging tortious interference with business relations,
trespass, IIED, and negligence. She later voluntarily dismissed her trespass claim.
In preparation for trial, one of appellant’s attorneys, Ursula Werner, created a
summary of appellant’s 2014 income so that appellant’s expert could calculate
damages. This was necessary because appellant had not yet filed her tax return for
2014. Ms. Werner created the summary from entries in appellant’s appointment
book, which listed the names of customers on the day they visited the salon.
Appellant told Ms. Werner the sums she would have received based on her
knowledge of the services each customer requested.
On September 28, 2015, the day trial began, Judge Stuart G. Nash ruled on
three of the four major issues in this appeal. First, he declined to include
appellant’s proposed jury instruction elaborating on the “intent” element of tortious
interference with business relations. Appellant had asked for a definition of intent
which included conduct that appellees knew was certain or “substantially certain”
to interfere with her business. However, Judge Nash concluded that appellant
needed to show actual intent, stating that “the idea is that they did this for the
purpose of harming Ms. Whitt and her business interests[.]”
6
Second, Judge Nash disqualified Ms. Werner from serving as appellant’s co-
counsel. He stated that the defense should have “the ability to explore” how
appellant’s expert had arrived at his damages figures, and he noted that
Ms. Werner had “unconsciously, without any intention of doing so, . . . injected
[herself] into the process of [calculating the amount of appellant’s 2014 income]
by going through the books and using [her] discretion to come up with a key piece
of evidence in this case.” Judge Nash ruled that the defense could call Ms. Werner
as a witness to describe how she had created the summary of income. Because
Ms. Werner would be a necessary witness, she could not serve as counsel. See
D.C. Rules of Prof’l Conduct, R. 3.7 (a). Ms. Werner’s co-counsel, Ryan Spiegel,
represented appellant at trial.3
Finally, Judge Nash ruled that the “economic loss doctrine,” as described in
Aguilar v. RP MRP Wash. Harbour, LLC, 98 A.3d 979 (D.C. 2014), barred
appellant’s claims for economic damages allegedly caused by appellees’
3
Although appellant challenges the disqualification on appeal, Ms. Werner
told Judge Nash that “if the alternative is that you will foreclose the summary that
[appellant’s expert] relied upon, I’m perfectly willing and able to go on the stand
and explain in detail how I came about with [sic] that summary.” When Judge
Nash cautioned Ms. Werner that such a situation could lead to her disqualification,
she stated: “I have able co-counsel. We can discuss that just amongst us.”
7
negligence. Having previously ruled that appellant could not recover damages for
the emotional distress allegedly caused by the negligence, Judge Nash dismissed
the negligence claim.
During trial, appellant testified and called several witnesses, including her
expert, former customers, Stanton’s co-president, and Ms. Werner. 4 At the
conclusion of appellant’s case, both Washington Gas and APC moved for directed
verdicts on the remaining claims of IIED and tortious interference with business
relations.
Judge Nash directed verdicts for Washington Gas, finding that “[e]ven if . . .
acts committed in pursuit of this trenching project were done intentionally to
interfere with Ms. Whitt’s business or, in the case of the infliction of emotional
distress, . . . done recklessly,” there was no evidence “from which a reasonable fact
finder could determine whether it was Washington Gas that committed those
acts . . . or whether it was one of their subcontractors[.]” Judge Nash further noted
that appellant had failed to show “that the ties between Washington Gas and the
subcontractors were sufficiently strong and that Washington Gas retained sufficient
4
After the court ruled that the defense could call Ms. Werner as a witness,
appellant apparently decided to call her before the defense did in order to lay the
foundation for the income summary.
8
direction over the project” so that the subcontractors were agents of Washington
Gas. Without proof that Washington Gas or its agents had actually performed the
work that led to appellant’s grievances, Judge Nash found that no “reasonable juror
could impose liability on Washington Gas[.]”
Judge Nash found that appellant had offered evidence that APC was
responsible for interference caused by four items: (1) a boom-lift crane, (2) a mini-
loader, (3) the port-a-potty, and (4) the road signs. Concluding that a reasonable
juror could infer that APC placed these items in such a way as to intentionally
inflict emotional distress on appellant or interfere with her business, the court
denied APC’s motion for directed verdicts. However, Judge Nash refused to “lay
blame on APC for all the conditions that existed in the alleyway” because, as with
Washington Gas, there was “no testimony as to the relationship between APC and
the subcontractors, and whether those subcontractors were independent contractors
of APC or agents of APC.” Thus, he limited the factual predicate for appellant’s
claims against APC to the four items for which there was evidence that it was
directly responsible. On the verdict form, the jury answered “no” when asked
whether it found that APC had committed tortious interference with business
relations or IIED.
9
II. Analysis
A. The Proposed Jury Instruction on Intent
“[W]e review a trial court’s refusal to grant a request for a particular
instruction for abuse of discretion, which may be found if the court’s charge as a
whole does not fairly and accurately state the applicable law.” NCRIC, Inc. v.
Columbia Hosp. for Women Med. Ctr., 957 A.2d 890, 898 (D.C. 2008).
A prima facie case of tortious interference with business relations requires:
“(1) existence of a valid contractual or other business relationship; (2) [the
defendant’s] knowledge of the relationship; (3) intentional interference with that
relationship by [the defendant]; and (4) resulting damages.” Newmyer v. Sidwell
Friends Sch., 128 A.3d 1023, 1038 (D.C. 2015) (quoting Havilah Real Prop.
Servs., LLC v. VLK, LLC, 108 A.3d 334, 345-46 (D.C. 2015)).
Appellant argues that the trial judge should have given a jury instruction
explaining the third element—intent. She relies upon the Restatement (Second) of
Torts, § 766 cmt. j (Am. Law. Inst. 1979), which states that the intent required for
tortious interference with business or contractual relations can be proven when the
10
actor “knows that the interference is certain or substantially certain to occur as a
result of his action.” That comment refers to, and is reinforced by, Restatement
(Second) of Torts § 8A, which clarifies that, as used in the Restatement, the word
“intent” refers to both actual intent—in other words, that “the actor desires to cause
consequences of his act”—and situations in which the actor “believes that the
consequences are substantially certain to result from [his action].”
Appellant asserts that, without further elaboration, the jury would not realize
that intent is “broader” than “cases in which the defendant has acted with . . .
purpose or desire.” Id. § 766 cmt. j. She argues that the trial judge should have
given her proposed jury instruction explaining that “[i]nterference with someone
else’s business relationship is intentional if the actor desires to bring the
interference about, or if he knows that the interference is certain or substantially
certain to occur as a result of his action.”
It does not appear that this court has previously faced this question. 5
However, we agree that the trial judge erred by refusing to give the proposed
5
Arguably, we came the closest to confronting this issue in Kreuzer v.
George Wash. Univ., 896 A.2d 238 (D.C. 2006). In that case, where the university
built a dormitory next to the plaintiff’s property, we “summarily” dealt with the
plaintiff’s claim of intentional interference with prospective economic advantage.
(continued…)
11
instruction. First, we have repeatedly stated that the “law of tortious interference
with business or contractual relationships derives from the Restatement (Second)
of Torts.” Newmyer, 128 A.3d at 1038; see also Havilah, 108 A.3d at 345. Both
§ 766 cmt. j and § 8A of the Restatement make clear that a plaintiff can prove
intent by showing that a defendant knew that his actions were certain or
substantially certain to interfere with the plaintiff’s business. We note that other
jurisdictions have adopted the “substantially certain” language.6
(…continued)
Id. at 241-42, 247. In affirming the trial judge’s granting of summary judgment to
the university, we quoted with approval his observations that “[a]t no point” did
the plaintiff “allege that [the university’s] primary (or even ancillary) intent . . .
was to interfere with [the plaintiff’s] economic advantage,” and that there was “no
allegation that the [university’s] construction was intended to harm [the plaintiff].”
Id. at 242, 247-48 (emphasis in original). We also quoted, in passing, a non-
binding decision indicating that a plaintiff should make “a strong showing of
intent.” Id. at 248 (quoting Sheppard v. Dickstein, Shapiro, Morin & Oshinsky,
59 F. Supp. 2d 27, 34 (D.D.C. 1999)). However, there is no indication that the
parties in Kreuzer or Sheppard presented the court with arguments regarding § 766
cmt. j or § 8A of the Restatement, nor did the court mention, much less reject, the
“substantially certain” language found in those provisions.
6
See, e.g., Ecco Plains, LLC v. United States, 728 F.3d 1190, 1199 (10th
Cir. 2013) (applying Colorado law); Commerce Funding Corp. v. Worldwide Sec.
Servs. Corp., 249 F.3d 204, 212-13 (4th Cir. 2001); Brown v. Transurban USA,
Inc., 144 F. Supp. 3d 809, 849 (E.D. Va. 2015); Rossignol v. Voorhaar, 321
F. Supp. 2d 642, 649 (D. Md. 2004); Union Carbide Corp. v. Montell N.V., 944
F. Supp. 1119, 1137 (S.D.N.Y. 1996); Total Care Sys., Inc. v. Coons, 860 F. Supp.
236, 241 (E.D. Pa. 1994); Quelimane Co. v. Stewart Title Guar. Co., 960 P.2d 513,
531 (Cal. 1998).
12
When analyzing the denial of a proposed jury instruction, “we review the
record in the light most favorable” to the party that proposed the instruction.
Nelson v. McCreary, 694 A.2d 897, 901 (D.C. 1997). Although the instruction
requested by appellant may not be necessary in every case, it was critical in this
one.
Appellant provided evidence, viewed in a light favorable to her, that the
construction activity had blatantly harmful effects on her business. At times,
APC’s boom-lift crane completely blocked the salon’s entrance, preventing
anyone—including customers—from reaching it. Multiple road signs at the mouth
of the alley warned of construction activity and deterred members of the public
from entering. A port-a-potty next to appellant’s door emitted noxious odors and
leaked a bluish liquid, leading to a situation that one of appellant’s customers
described as “gross.” For “[a]t least three weeks,” the alley was completely closed
off with yellow tape, red cones, and stacked bricks, and the surface of the alley
appeared to have been removed and replaced with a black plastic coating that
would have deterred customers from entering.7
7
We realize that the trial judge did not allow the jury to consider the closing
of the alley during these weeks because he granted directed verdicts for
Washington Gas and limited APC’s liability to the impact of the crane, road signs,
port-a-potty, and a mini-loader. However, as we will describe below, the trial
(continued…)
13
Appellant regularly complained to APC and others about these problems,
and there was evidence that those complaints reached Washington Gas. Given the
alley’s disrepair, the obvious obstacles to reaching appellant’s business, and
appellees’ knowledge of the situation, it was particularly important in this case for
the trial judge to instruct the jury that it could find intent if appellees were “certain,
or substantially certain” that they were interfering with appellant’s business, yet
“still [went] ahead” with the construction anyway. Restatement (Second) of Torts
§ 8A cmt. b.
We emphasize that, even with appellant’s proposed jury instruction
expanding the concept of intent to include conduct that was certain or substantially
certain to interfere with her business, appellees may still claim that they were
legally privileged or justified in performing the construction. See, e.g., NCRIC,
957 A.2d at 901; Sorrells v. Garfinckel’s, Brooks Bros., Miller & Rhoads, Inc., 565
A.2d 285, 289-90 (D.C. 1989). Indeed, Judge Nash gave the standard jury
instruction explaining this defense.
(…continued)
judge erred when granting a directed verdict for Washington Gas on the tortious
interference claim and limiting the factual predicate as to APC.
14
Finally, we hold that the trial judge’s error requires reversal. Cf. Dennis v.
Jones, 928 A.2d 672, 676 (D.C. 2007) (noting that “an error in denying an
instruction can be harmless”). As described above, appellant presented substantial
evidence that the activities of APC and Washington Gas damaged her business.
An instruction clarifying that appellant needed only to show that appellees acted
with knowledge that interference would be certain or substantially certain, as
opposed to actual purpose or desire to interfere, would have eased appellant’s
burden of proof on the intent issue.
Indeed, APC highlighted the importance of the intent issue during its closing
argument, stating that it was the “big question” and that appellant had provided “no
explanation” for “[w]hy in the world” APC “or anyone else” would “do anything
to intentionally hurt Ms. Whitt[.]” Given the importance of the issue, we cannot
say “with fair assurance . . . that the judgment was not substantially swayed by the
error.” Nelson, 694 A.2d at 902 (internal quotation marks omitted). Accordingly,
we reverse so that appellant may receive a new trial on her tortious interference
with business relations claim.
B. The Negligence Claim
15
Appellant also challenges the dismissal of her negligence claim. The trial
judge ruled that this court’s decision in Aguilar barred appellant’s claim for
economic damages she attributed to appellees’ alleged negligence. We review
de novo the trial judge’s application of the economic loss doctrine. See Aguilar,
98 A.3d at 982 (stating that “whether the plaintiff’s interests are entitled to legal
protection against the defendant’s conduct is a question of law for us to decide”
(internal quotation marks and citation omitted)); see also Washkoviak v. Student
Loan Mktg. Ass’n, 900 A.2d 168, 177 (D.C. 2006) (“We review a dismissal for
failure to state a claim de novo.” (internal quotation marks omitted) (quoting
Oparaugo v. Watts, 884 A.2d 63, 75 (D.C. 2005))).
In Aguilar, we adopted the “economic loss doctrine, which prohibits claims
of negligence where a claimant seeks to recover purely economic losses sustained
as a result of an interruption in commerce caused by a third party.” 98 A.3d at 980
(internal quotation marks omitted). In that case, “cooks, servers, bartenders,
receptionists, hairstylists, and other employees” of retail establishments in the
Washington Harbour complex sought to recover lost wages from the owner and the
manager of the property. Id. The plaintiffs alleged that the defendants negligently
failed to raise flood walls to block a surge of “ten to twelve feet of water” from the
Potomac River that damaged the complex’s ground-level businesses, basement,
16
and parking lot. Id. at 980-81. The flood forced the plaintiffs’ employers to close
their businesses temporarily, leaving the employees “without a source of income
for some time.” Id. at 981.
Because the plaintiffs only claimed economic damages, and had not suffered
physical injury or damage to their own property, the defendants urged this court to
adopt the economic loss doctrine in order to uphold dismissal of the claim. Id. at
982, 985. We identified several policy reasons for doing so. We noted that “where
pure economic loss is at issue, not connected with any injury to one’s body or
property, . . . the reach of legal liability is quite limited.” Id. at 983 (alterations
omitted) (citation omitted). We were also concerned about “the lack of a coherent
limiting principle” if we adopted the plaintiffs’ test of foreseeability and about the
wisdom of “imposing virtually infinite liability for conduct that is merely
negligent.” Id. at 983-84 (internal quotation marks omitted).
While recognizing these concerns, we did not signal that economic loss is
unimportant. Rather, we were grappling with the question of whether the
defendants owed a duty of care to the plaintiffs. Id. at 981. We left open the
possibility that a plaintiff could recover economic damages if it had a “special
relationship” with the defendant. Id. at 985-86. We adapted this limiting principle
17
from Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C. 2011) (en banc), in
which we examined the duty of care that a doctor might owe to her patient in the
context of a claim for negligent infliction of emotional distress. Id. at 792. In
Hedgepeth and in Aguilar, we recognized that “‘whether the plaintiff’s interests are
entitled to legal protection against the defendant’s conduct’ is a question of law for
us to decide.” Aguilar, 98 A.3d at 982 (quoting Hedgepeth, 22 A.3d at 793).
In Aguilar, we did not, of course, suggest that special relationships were
limited to interactions such as those between a doctor and a patient. Rather, the
nature of the special relationship may depend on the type of damages at issue.
This case does not present a situation, as in Hedgepeth, where we inquire whether
“the defendant ha[d] an obligation to care for the plaintiff’s emotional well-being
or the plaintiff’s emotional well-being is necessarily implicated by the nature” of
the defendant’s relationship to the plaintiff, and “serious emotional distress is
especially likely to be caused[.]” 22 A.3d at 792 (emphasis added). In Aguilar, we
instead analyzed whether the defendants had an “obligation . . . to care for [the
plaintiffs’] economic well-being” or an “obligation” that “implicate[d] appellants’
economic expectancies.” 98 A.3d at 985. Holding that the defendants in Aguilar
did not, we stressed the lack of direct connection between the commercial landlord
and the plaintiffs, who were not tenants but rather employees of tenant businesses
18
located on the property. Id. (noting that the landowner had “no control over [the
employees’] presence on the property”).
Here, however, there was evidence that appellees undertook obligations that
would “implicate [appellant’s] economic expectancies.” See id. First, one of the
permits that authorized the construction recognized the impact that appellees’
actions would have on appellant’s business when it required that the construction
“not block access” to “business entrances of [the] 7th Street alley.” Counsel for
APC assured Judge Nash that “[n]o one is going to argue” that APC “didn’t know
about the public space permits and didn’t think [it was] obligated to comply with
the terms[.]”
Perhaps most importantly, appellant is not claiming damages caused by an
isolated and unexpected occurrence, as in Aguilar and the cases cited there.
98 A.3d at 980-81, 983 n.2.8 She is, rather, seeking damages from two companies
8
See, e.g., Aikens v. Debow, 541 S.E.2d 576, 579-80 (W. Va. 2000)
(applying the economic loss doctrine when a highway accident caused a bridge to
close for less than three weeks); Local Joint Exec. Bd. v. Stern, 651 P.2d 637, 637-
38 (Nev. 1982) (per curiam) (applying the economic loss doctrine following a fire
at a hotel where the plaintiff employees worked); Stevenson v. E. Ohio Gas Co., 73
N.E.2d 200, 201, 203-04 (Ohio Ct. App. 1946) (applying the economic loss
doctrine when a fire and subsequent risk of explosions caused a neighboring
business to close for eight days).
19
that participated in extensive construction directly outside of her business entrance
over a multi-year period. That construction included the use of several pieces of
heavy machinery and the excavation and re-paving of the alley. Appellant
frequently communicated with APC and others about this activity for two years,
and construction personnel would discuss her complaints with her (though they
assertedly failed to improve the situation). It would be especially perverse if APC
and Washington Gas could undertake this activity for their own profit while
claiming immunity from damages if they negligently caused appellant to lose
income. This surely is not the purpose of the economic loss doctrine.
Given this extensive activity over a prolonged period, and the provisions of
the permit specifically protecting appellant from the effects of this very conduct,
we hold that appellees were in a “special relationship” with appellant for purposes
of the economic loss doctrine. See id. at 985 (equating a special relationship with
an “obligation” that “implicate[s] appellants’ economic expectancies”); Tolu v.
Ayodeji, 945 A.2d 596, 601 (D.C. 2008) (per curiam) (“The question of whether a
defendant owes a duty to a plaintiff under a particular set of circumstances is
entirely a question of law that must be determined only by the court.” (alteration
omitted) (citation omitted)).
20
Accordingly, we reverse the trial judge’s ruling that appellant cannot, as a
matter of law, recover economic damages if she proves injury caused by appellees’
negligence.9
C. The Attorney Disqualification
Appellant also challenges the disqualification of Ms. Werner. We review
the disqualification of an attorney for abuse of discretion. Derrickson v.
Derrickson, 541 A.2d 149, 152 (D.C. 1988).
9
However, we affirm the trial judge’s ruling that appellant is not entitled to
damages for emotional distress allegedly caused by appellees’ negligence.
Appellant argues that she can recover damages for emotional injury under a
negligence theory, although she did not suffer physical injury, because she was in a
“zone of physical danger” when walking through an alley in which a welder
produced sparks and there were “unstable wooden planks over a foul muddy alley
floor.” Occasional sparks and the possibility of slipping into mud do not rise to the
level of situations in which we have held that a plaintiff could recover damages for
emotional distress because she was in a zone of physical danger. See, e.g., District
of Columbia v. Evans, 644 A.2d 1008, 1019 (D.C. 1994) (holding that a reasonable
fact-finder could find a zone of physical danger where a mother was in such close
proximity to gunshots that killed her son that a firefighter “pushed [her] to the
ground in order to protect her from possible stray bullets”); Sowell v. Hyatt Corp.,
623 A.2d 1221, 1222, 1225-26 (D.C. 1993) (holding that a zone of physical danger
existed where the plaintiff saw a worm in a spoonful of food that she was about to
eat, she had already eaten a significant amount of food from that serving, and she
repeatedly vomited after seeing the worm).
21
Appellant points to two rules of evidence for the proposition that the trial
court should have admitted the 2014 income summary without Ms. Werner’s
testimony. However, the trial judge did not rule that the evidence was
inadmissible, but rather that the defense should have the “ability to explore” how
appellant had “come up with a key piece of evidence” regarding damages, a “key
element in the case[.]” The issue before us, therefore, is whether the trial judge
erred in ruling that the defense had a right to call Ms. Werner to explain that
evidence.10
Ms. Werner was the only person who could have testified meaningfully
about the preparation of the summary. She created it using appellant’s
appointment book and input from appellant. Appellant’s expert played no role in
this process. Thus, he would not have been able to explain Ms. Werner’s
methodology. Appellant herself would not likely have been able to explain the
summary because Ms. Werner admitted that she used discretion in taking
10
In any event, the rules that appellant cites do not aid her. Fed. R. Evid.
1006 governs summaries of voluminous writings. “[A]s part of the foundation for
a [summary], the witness who prepared the [summary] should introduce it.”
United States v. Hemphill, 514 F.3d 1350, 1358 (D.C. Cir. 2008). Here, that would
be Ms. Werner. Further, Fed. R. Evid. 703 governs the admissibility of expert
opinions when they are based upon facts or data upon which experts would
“reasonably rely.” Again, the summary of income was admitted, and the expert
was permitted to use it when giving his opinion.
22
appellant’s input, along with the entries in the appointment books, and creating an
original spreadsheet that purported to summarize hundreds of interactions over the
span of eight months.
Given this process and the centrality of the issue, we cannot say that the trial
judge abused his discretion in ruling that the defense could call Ms. Werner and
that she should be disqualified as a result. See D.C. Rules of Prof’l Conduct,
R. 3.7 (a) (providing that, with limited exceptions not applicable here, a “lawyer
shall not act as advocate at a trial in which the lawyer is likely to be a necessary
witness”). Of course, at a new trial appellant may seek to prove her 2014 income
by different means, and disqualification may no longer be necessary.
D. Agents or Independent Contractors?
Appellant also argues that the trial judge erred when directing verdicts for
Washington Gas and limiting the factual predicate for appellant’s claims against
APC. Judge Nash found “no evidence” regarding whether Washington Gas or one
of its subcontractors had “d[u]g up” the alleyway so as to tortiously interfere with
appellant’s business or intentionally inflict emotional distress on her. Judge Nash
acknowledged that appellant could still prevail if she showed that the
23
subcontractors were “agents” of Washington Gas rather than “independent
contractors.” However, he found “simply insufficient evidence in the record for
[appellant] to meet her burden of proof on that issue as well[.]” He thus found that
no “reasonable juror could impose liability on Washington Gas[.]”
The trial judge used similar reasoning for APC. He found evidence that
APC had direct responsibility for four items—the boom-lift crane, the mini-loader,
the port-a-potty, and the road signs. However, there was not “a basis upon which
to lay blame on APC for all the conditions that existed in the alleyway” because
there was “no testimony” as to whether the subcontractors involved in the project
were “independent contractors of APC or agents of APC.” He therefore limited
appellant’s case against APC to the four items he had identified.
Both of these rulings were error. “Generally, a company is not liable for the
acts of its independent contractors.”11 Anthony v. Okie Dokie, Inc., 976 A.2d 901,
11
An exception to this rule exists when the activity “by its very nature
should have been expected seriously to interfere with [plaintiff’s] use of her
[property]”—in other words, when the contractor’s work “amounts to a nuisance.”
Taylor v. Tellez, 610 A.2d 252, 254-55, 255 n.2 (D.C. 1992) (alterations in
original) (internal quotation marks omitted) (noting the exception when contractors
performed an excavation); see also Shapiro v. Vautier, 36 A.2d 349, 350-51 (D.C.
1944) (applying the exception when a contractor damaged the ceiling and floor of
(continued…)
24
906 (D.C. 2009). However, a company can be liable for the actions of its agents.
See Judah v. Reiner, 744 A.2d 1037, 1039-40 (D.C. 2000). “The right to control
. . . is determinative in establishing the existence” of an agency relationship. Levy
v. Currier, 587 A.2d 205, 212 (D.C. 1991). Appellant presented evidence that both
Washington Gas and APC had the right to control various subcontractors working
on the project.
Testimony from a Washington Gas representative and from the co-president
of Stanton established that Washington Gas had two subcontractors—Fort Myer
and D.A. Foster—that worked on excavating and re-paving the alley. When
describing the subcontractors’ work, the Washington Gas representative averred
that he “manage[s] and [is] responsible for” Fort Myer. He also confirmed that one
of his colleagues “manages D.A. Foster.” That colleague, who was also a
Washington Gas corporate designee, explained that Washington Gas has
“construction supervisors” that “periodically, if they deem it necessary, prioritize
[the subcontractors’] work[.]” There was further testimony that one of these
supervisors visited the site in this case five or six times.
(…continued)
another apartment in the building). However, the parties have not briefed the
application of this exception, and we therefore decline to rely upon it.
25
At the very least, this evidence was sufficient for the jury to make a factual
determination regarding whether Washington Gas had a right to control Fort Myer
and D.A. Foster. The trial judge erred in taking that decision away from the jury
and relieving Washington Gas from potential liability.
There also was ample evidence from which a jury could have concluded that
APC had a right to control subcontractors at the work site. First, APC was the
general contractor. Further, Stanton’s co-president stated that Patrick McGivern,
an APC employee, served as project manager. Mr. McGivern testified that APC
employee David King was “the full-time superintendent” for the project.
Appellant confirmed that Mr. King “was the head contractor” and that she saw him
“[d]aily” over the course of two years. When appellant complained to workers in
the alley, they would inform Mr. King, who would meet with appellant to discuss
her complaints.
Mr. King later acknowledged that he was “job superintendent,” and he stated
that he was “in control of scheduling manpower, getting all the sub[contractor]s
out to do what they need to do, things like that.” Following this testimony,
Mr. McGivern reiterated that APC’s role included “mak[ing] sure that [the
26
subcontractors] did their job[.]” 12 Thus, as with Washington Gas, there was
sufficient evidence for the jury to make a determination as to whether APC had the
right to control subcontractors at the site. The trial judge accordingly erred when
he ruled that there was “no basis for assessing liability against APC for the actions
of their subcontractors.”
These errors were not harmless. Given the evidence of disruption caused by
the excavation and re-paving project, and given our holding that appellant was
entitled to her proposed jury instruction regarding intent, we cannot say with “fair
assurance” that a jury would not have found that Washington Gas committed
tortious interference if it had been allowed to consider whether Washington Gas
had an agency relationship with its subcontractors. See R. & G. Orthopedic
Appliances & Prosthetics, Inc. v. Curtin, 596 A.2d 530, 539-40 (D.C. 1991)
(establishing that, for harmless error analysis in a civil case, this court must
examine whether it can say with “fair assurance” that the verdict was not
“substantially swayed” by the error).
12
We recognize that Mr. King and Mr. McGivern made the statements in
this paragraph after the judge had already ruled on the agency issues. However,
because we are remanding for a future trial, evaluation of the agency issues should
focus on all of the available evidence.
27
The issue is closer regarding APC. Judge Nash allowed the jury to consider
four of the major obstacles—the boom-lift crane, the mini-loader, the port-a-potty,
and the road signs. Appellant only points to miscellaneous debris and construction
equipment as added potential sources of liability. However, we need not decide
whether the trial judge’s agency ruling regarding APC was harmless error because
we must reverse and remand due to our holding regarding appellant’s proposed
jury instruction. When APC faces a new trial, the jury should be allowed to
consider whether there was an agency relationship between APC and its
subcontractors which would make APC responsible for items other than the four
that the trial judge identified.
E. Intentional Infliction of Emotional Distress
Finally, although we remand for further proceedings on appellant’s tortious
interference and negligence claims, we affirm the judgments for both APC and
Washington Gas on appellant’s IIED claims. Appellant has not put forth sufficient
evidence to meet the high burden of showing “extreme and outrageous” conduct on
behalf of appellees. See, e.g., Newmyer, 128 A.3d at 1041 (noting that “[t]he
requirement of outrageousness [for IIED] is not an easy one to meet” because “the
conduct must be so outrageous in character, and so extreme in degree, as to go
28
beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community” (internal quotation marks and citations
omitted)).
As the trial judge noted, the two pieces of evidence that arguably best
support appellant’s IIED claims are the port-a-potty and the boom-lift crane. The
port-a-potty was placed next to appellant’s entrance despite the fact that it smelled
like “raw sewage” and was leaking “blue-colored liquid.” Appellant also testified
that the port-a-potty was moved “a little closer” to her door after she complained.
Further, the crane completely blocked appellant’s entrance at times, making travel
to the salon difficult, if not impossible.
Nonetheless, the jury apparently was not persuaded that this conduct rose to
the high level of extreme and outrageous conduct that is required under our case
law.13 Thus, we will not disturb the jury’s verdict rejecting appellant’s IIED claim
against APC.
13
See, e.g., Wood v. Neuman, 979 A.2d 64, 70, 77-78 (D.C. 2009) (refusing
to find extreme and outrageous conduct when the defendants had their workmen
“jump over [plaintiff’s] fence for their convenience,” used plaintiff’s garden as a
“passageway,” and caused “destruction” to plaintiff’s garden by digging up her
plants); cf. Newmyer, 128 A.3d at 1027, 1032, 1042-43 (holding that
“gratuitous[ly]” publishing a “particularly sexually explicit” complaint via national
(continued…)
29
Further, the evidence indicated that APC had control over the port-a-potty
and the boom-lift crane, and there was no evidence that Washington Gas was
responsible for them or for other extreme and outrageous conduct. Accordingly,
we affirm the judgment (a directed verdict) for Washington Gas on the IIED count.
III. Conclusion
We reverse and remand for further proceedings against both Washington
Gas and APC on appellant’s claims of negligence and tortious interference with
business relations. However, we affirm the rulings in favor of Washington Gas
and APC on appellant’s claims for IIED. We also affirm the trial court’s ruling
that appellant may not collect damages for emotional distress under a negligence
theory. Finally, we affirm the trial court’s disqualification of Ms. Werner.
(…continued)
media organizations in order to publicly “brand [the victim] with a scarlet letter”
and allegedly “disrupt the [victim’s] private life and career prospects” could be
regarded as extreme and outrageous); Drejza v. Vaccaro, 650 A.2d 1308, 1309,
1317 (D.C. 1994) (holding that a reasonable fact-finder could find extreme and
outrageous conduct when a police detective “humiliated a distraught rape victim”
an hour after her rape by “smirk[ing] at her account, act[ing] as though her ordeal
was insignificant and her complaints were unreasonable, bull[ying] her into
(initially) not pressing charges,” and tossing her underwear at her while telling her
to take her “little panties home”).
30
So ordered.