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As a Matter of First Impression, District of Columbia Court of Appeals Holds that a Plaintiff Making a Rescue Attempt and Thereby Entering the Zone of Danger, May Recover Mental Distress Damages

DeStefano v. Children’s National Medical Center
Civ. No. 13-CV-679 (July 23, 2015)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (

Available at:

DeStefano v. Children’s National Medical Center, D.C. Ct. of Appeals Civ. No. 13-CV-679 (July 23, 2015), involved Plaintiff parents suing a hospital and parking company Defendants for injuries allegedly caused when their son fell down an air shaft in a parking garage. The jury awarded Plaintiffs a total of $1,586,000, and all parties appealed. The appellate court reversed the trial court’s decision granting summary judgment to the Defendants on the mother’s claim of negligent infliction of emotional distress, but otherwise affirmed the proceedings below.

The Defendant Hospital’s main building includes an underground parking garage, operated and maintained by the private parking company Defendant. Plaintiff brought her son to the hospital for a medical appointment, and was also accompanied by her daughter. Plaintiff parked her car in a designated parking space near the garage wall. After the appointment, Plaintiff asked her children to back up in the space between the car and the wall so she could open the door. When the children did so, her son fell backwards through a vent in the wall that opened into a twenty-five (25) foot air shaft. The daughter was holding his hand and screamed when he fell. The metal cover for the hole was leaning against the wall nearby. Plaintiff reached into the hole for her son, but he was ultimately rescued by others and taken to the emergency room. He allegedly suffered numerous injuries from the fall, including post-concussive syndrome. Plaintiffs sued the hospital and parking garage operator for negligence. After a month-long trial, the jury awarded the son $1,560,000 and the daughter $26,000, finding both Defendants jointly and severally liable.

Plaintiffs appealed the trial court’s grant of summary judgment as to the mother’s claim for negligent infliction of emotional distress. The trial court determined that Plaintiffs had not shown that the mother was in the zone of physical danger. If in the zone of danger, the Plaintiff may recover damages for emotional distress caused by fear for the safety of a member of the Plaintiff’s immediate family who was endangered by the Defendant’s negligent act. The trial court determined that the hole was dangerous to a small child because of its size/placement on the wall, and that the risk of unintentionally falling through the hole simply did not exist for an adult. Plaintiffs argued that the mother was not initially in the zone of danger, but that she did become at risk of falling when she reached in the vent to rescue her son. They relied on statements in her Affidavit, which Plaintiffs claimed was also unfairly excluded under the “sham affidavit rule”.

The appellate court determined that the Affidavit was not a “sham” because it did not contradict “prior” sworn testimony, since the allegedly contradictory deposition testimony occurred after the execution of the Affidavit. The appellate court determined that the Affidavit should have been considered, and that its allegations supported the argument that the mother was in the zone of danger, because she lunged and reached into the hole to rescue her son, had no idea the drop was more than two (2) stories, dropped her keys, and almost fell into the hole herself—all while listening to her son crying and calling out for help from her. The Affidavit also referenced how petite the mother was and how she believed she could have fit through the hole.

The appellate court held that the trial court erred by ignoring the Affidavit and concluding that the mother was outside the zone of danger. As a matter of first impression, the Court further held that a Plaintiff bringing herself into the zone of danger in the course of a rescue attempt may recover damages for mental distress, as long as the Plaintiff feared for her own safety, because of the Defendant’s negligence, while in the zone of danger. Such Plaintiffs can also recover damages for mental distress caused by fear for the safety of an immediate family member who was endangered by the negligent act. In this case, Plaintiffs provided evidence at the summary judgment stage sufficient to establish a plausible claim for negligent infliction of emotional distress, and this claim should have been submitted to the jury.

Defendants appealed the $26,000 damage award to the sister for negligent infliction of emotional distress. The Defendants conceded that the sister was in the zone of danger, but asserted that there was no evidence that the sister was in fear of her own safety. The Court determined that there was sufficient evidence for a reasonable jury to conclude the sister feared for her own safety, even though she did not testify at trial. Experts at trial testified based on their examinations of the sister that the sister had dreams of herself, her brother, and her mother swimming, drowning, and dying. A jury could reasonably infer, therefore, that the sister feared for her own safety at the time of her brother’s fall, and that her claim was properly submitted to the jury.

The Plaintiffs cross-appealed on the basis that the trial court instructed the jury that they could award damages for any emotional distress and inconvenience that the son may suffer in the future, except that they could not award future damages due to permanent Post-Concussive Syndrome. The Court determined that the trial judge’s instructions were proper because Defendant’s expert testified that the son’s post-concussive syndrome was only temporary, and Plaintiff’s expert did not offer sufficient expert opinion that the syndrome was permanent.

Plaintiffs also contended that the trial court should have submitted the issue of punitive damages to the jury. Plaintiffs contended that the hospital’s officers recklessly disregarded Plaintiffs’ safety because they did not review the parking company’s paperwork to determine whether the parking company was properly conducting inspections of the garage. To the Court, while that evidence may have shown that the hospital was negligently inattentive to the parking company’s work, it did not demonstrate that the hospital acted with reckless indifference to Plaintiffs. As to the parking company, there was evidence that a parking company employee knew about the open vent, and dismissed it, but Plaintiffs offered no evidence identifying the employee by name or position with the company, meaning that the record did not show that a parking company “officer, director, or managing agent” authorized, participate in, or subsequently ratified the failure to remedy the hazard posed by the open vent. Furthermore, an alleged “cover up” by the parking company supervisors involving alleged forged inspection check-lists happened after the fall and thus was not a tortious act causing harm to the Plaintiffs. Therefore, the jury could not have lawfully assessed punitive damages against either Defendant.

Next, the parking company Defendant argued that it had no legal duty to the Plaintiffs regarding the safety of the garage, but the Court disagreed, based on the expansiveness of the contractual duties that the parking company undertook on with respect to the garage. The parking garage Defendant was clearly and primarily in control of those business premises. Businesses in control of parking areas have a possessory interest in the premises that gives rise to a duty of reasonable care to those who are present. As Plaintiffs were in the parking garage for business purposes, Defendant owed them a duty of care as a possessor of the premises.

Finally, the trial court did not abuse its discretion in determining that expert testimony was not required to establish the parking company Defendant’s deviation from the standard of care. Under the circumstances of this case, it was not “beyond the ken of average layperson” to determine whether the Defendant deviated from the standard of care, since the Defendant had notice of the open vent, and it does not take “special knowledge” to “know that a large, uncovered vent in the wall of a parking garage could be a hazard, or that taking reasonable steps, such as posting a warning sign or replacing the vent cover, could ameliorate the danger.”

Overall, the Court of Appeals vacated the order of summary judgment entered in favor of Defendants on Plaintiffs’ claim for negligent infliction of emotional distress, and remanded for further proceedings consistent with this opinion, but otherwise affirmed the judgment of the Superior Court.