Matthews v. District of Columbia

KERN, Associate Judge,

concurring in part and dissenting in part:

While I concur fully with Part I of the majority’s opinion in rejecting the District’s attempt to have us adopt the so-called “pri- or notice” rule, I am unable to agree with its affirmance in Part II of the trial court’s entry of a judgment in favor of the District notwithstanding the jury’s verdict in favor of appellant in his suit to recover for personal injury concededly suffered as the result of a stabbing by fellow inmates at Lorton.

As I understand the evidence presented to the jury and summarized in the District’s brief, Lorton had established, at the time appellant was knifed, a so-called “critical minimum” of 51 correctional officers at 51 specific posts about the facility for the purpose of maintaining security and order for the period of time each day from 3:30 p. m. to midnight. The Acting Watch officer on the night in question assigned the 51 officers who reported for duty to these 51 stations, six of which were immediately adjacent to each of the six dormitories housing some 40 inmates apiece on the so-called north walk. These six stations were the only points outside each of the six dormitories from which the activities inside could possibly be observed.

That particular night, each of the officers commenced the watch at each of the 51 stations provided for by Lorton’s plan and to which each had been assigned by the officer in charge. Thereafter during the watch, various officers left their stations under ordefs to carry out other assignments — in the dining area, the relief of tower guards, driving buses to and from the facility and assisting at the visitors area and at the auditorium for the evening movie. Four of the officers left their “critical minimum” posts outside four of the dormitories; appellant was stabbed by other inmates while studying in one of those four dormitories left unattended by the departure of the officers from their posts.

There was other evidence, as the District details in its brief, that regular weekly searches of Lorton dormitories “often” produced one or two “shanks,” and, since 1969, the FBI has investigated each month about three weapons assaults occurring in the facility.

The majority points out (Op. at 734), in affirming the judgment notwithstanding *736 the jury’s verdict in favor of appellant, that “there was no expert testimony on the adequacy of the Lorton security arrangements nor other showing that it was unreasonable to allow flexibility in placement of correctional officers in accordance with inmate population movements.” It seems to me, however, that there was in effect expert testimony presented at trial to the jury by the District itself as to what in the government’s own view constituted security arrangements adequate for Lorton: 51 officers manning 51 specific stations around the facility were the critical minimum for the maintenance of adequate security at Lorton from 3:30 p. m. to 12 midnight. In light of this evidence, once appellant presented further evidence at trial that some correction officers were moved by the Watch Officer from some of these 51 critical stations Lorton had established, as a minimum, for the maintenance of security during this segment of the night, appellant had established a prima facie case of negligence. 1

The District of course presented evidence in its defense at trial that this movement of the officers during the 3:30 to midnight watch to perform other duties, viz., guard relief, bus driving, and supervision of other areas not among the critical minimum, such as the visitor’s area and the movie theater, was essential to maintaining security. The jury then had to weigh and consider all the evidence in determining whether due care was exercised by Lorton under all the circumstances. Since reasonable men could reasonably disagree over whether the Watch Officer’s movement of his officers from the 51 critical minimum security points on this particular night was the exercise of due care under all the circumstances and since we on appeal must view the facts in a light most favorable to appellant, I would conclude the jury properly took the case and allow its verdict to stand. 2

Accordingly, I respectfully dissent from Part II of the court’s opinion.

. I would not disagree with the majority’s conclusion that an expert would have been required to make a prima facie case for appellant at trial on an asserted theory that Lórton’s plan was inadequate; here, however, appellant urges that Lorton’s plan, viz., “the 51 critical minimum” plan, was operated by Lorton on that night in negligent fashion.

. Given the evidence adduced of (a) repeated armed attacks by inmates against other inmates over a long period of time and (b) the interior of the north walk dorms could only be observed from the “critical minimum" posts outside each dorm, 1 view proximate cause to have been established.