# Thoma v. Kettler Bros., Inc. > District of Columbia Court of Appeals · October 18, 1993 · 632 A.2d 725 URL: https://www.frixlaw.com/law-library/cases/9766462 ## Case - **Full name:** Ann E. THOMA, Et Ux., Appellants, v. KETTLER BROTHERS, INC., Et Al., Appellees - **Court:** District of Columbia Court of Appeals - **Decided:** October 18, 1993 - **Citations:** 632 A.2d 725; 1993 D.C. App. LEXIS 251; 1993 WL 429273 - **Precedential status:** Published - **Opinion:** Concurring in part by Sullivan - **Judges:** Ferren, Farrell, Sullivan - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766462 ## How later opinions describe it (automated extraction) - stating negligence per se instruction improper because generality of regulation providing that “[djebris and other loose materials, shall not be allowed on or under stairways” and “[sjlippery conditions on stairways shall be eliminated as soon a possible” did not differ signif… - holding that a negligence per se instruction would have been improper because the regulations at issue did “not differ significantly in their particulars from the common law standard of reasonable care in the circumstances” - noting that the generality of the regulation providing that “[d]ebris and other loose materials, shall not be allowed on or under stairways” and “[s]lippery conditions on stairways shall be eliminated as soon as possible” did not differ significantly in particulars from the co… - finding that even when persons are not part of class intended to be protected by OSHA regulations, the regulations may be admissible as some evidence of the standard of care ## Opinion text SULLIVAN, Associate Judge, concurring in part and concurring in the result: I agree with the analyses and conclusions of Judge Farrell in parts I. through III. of the majority opinion. Although I concur in Judge Farrell’s affirmance of the trial court’s judgment in parts IV. and V., I cannot conclude that the trial court committed “harmless error” by essentially failing to give a jury instruction that appellants did not request. Moreover, on appeal, appellants do not argue that the trial court failed to give the correct instruction. Rather, appellants maintain their entitlement to the erroneous instruction that they requested in the trial court. Thus, under these circumstances, it is difficult for me to find error on the part of the trial court, even the proverbial “harmless error.” In resolving an appeal from the U.S. Court of Appeals for the District of Columbia Circuit, the Supreme Court has held that “[A] party cannot assign for error, the refusal of an instruction to which he has not a right to the full extent as stated, and in its precise terms_” Catts v. Phalen, 43 U.S. (2 How.) 376, 382 , 11 L.Ed. 306 (1844) (emphasis added); see also Shimabukuro v. Nagayama, 78 U.S.App.D.C. 271, 272-73 , 140 F.2d 13, 14-15 (1944); Hiatt v. New York Cent. R.R., 411 F.2d 743, 746 (7th Cir.1969) (same); Todd County, Minnesota v. Loegering, 297 F.2d 470, 478 (8th Cir.1961) (same); Cherry v. Stedman, 259 F.2d 774, 777-78 (8th Cir.1958) (same); Baltimore & O.R.R. v. Felgenhauer, 168 F.2d 12, 18 (8th Cir.1948) (citations omitted) (same); Tombigbee Mill & Lumber v. Hollingsworth, 162 F.2d 763, 765 (5th Cir.1947) (same). By requesting an erroneous instruction on the law pursuant to Super.Ct.Civ.R. 51, 1 and pursuing on appeal the failure of the trial court to give the *732 erroneous instruction, appellants have not persuaded me that the trial court erred. 2 Judge Farrell recognizes the fallacy of the (non-per se) instruction requested by appellants in the trial court, namely, that “ ‘[t]he violation of a regulation which is a cause of Plaintiffs’ injuries is evidence of negligence to be considered by you,’ — which under those decisions is the use that may not be made of the regulation.” Ante at 11. See also Klein v. District of Columbia, 133 U.S.App.D.C. 129, 131-32 , 409 F.2d 164, 166-67 (1969); Curtis v. District of Columbia, 124 U.S.App.D.C. 241 , 243, 363 F.2d 973, 976 (1966). I respectfully disagree with his conclusion, however, that there is only a “semantic quality to the distinction between the proper instruction letting the jury consider a regulation as evidence of a standard of care and the one appellants requested, treating violation of the regulation as evidence of negligence.” Ante at 11 note 11. Although, as Judge Farrell states, other courts may have ignored the distinction between the instructions, see id., absent the imprimatur of the en banc court, we must follow the distinction as recognized and articulated in the decisions of Klein and Curtis, which are binding on this court. See M.A.P. v. Ryan, 285 A.2d 310 (D.C.1971); Klein, supra, 133 U.S.App.D.C. at 131-32 , 409 F.2d at 166-67 (1969) (“In this case, as in Curtis, the building code was an important piece of evidence as a reasonable standard of care in maintaining sidewalks in a safe condition. It should have been admitted with an explanation to the jury that they were to consider, not its violation, but rather its embodiment in the building code as indicating the requirements for a safe sidewalk.”) (emphasis added); Curtis, supra, 124 U.S.App.D.C. at 243, 363 F.2d at 976 (1966) (“[S]afety provisions may appropriately be held competent, not in and of themselves as evidence of negligence, but as evidence of a standard by which the jury must measure the conduct of the.defendants in determining whether they exercised that due care the law required in the situation”). (Emphasis added.) Accordingly, although I concur in the result reached by Judge Farrell, I would reach this result via a different route without a finding of “harmless error” on the part of the trial court. . Super.Ct.Civ.R. 51 provides in relevant part as follows: At the close of evidence or at such earlier time during the trial as the Court reasonably directs, any party may file written requests that the Court instruct the jury on the law as set forth in the requests. [Emphasis added.] . Under the circumstances, the trial court was under no duty to recast, modify, or otherwise correct the instruction. See Coleman v. Chudnow, 35 A.2d 925, 926 (D.C.1944); George v. United States, 75 U.S.App.D.C. 197, 201 , 125 F.2d 559, 563 (1942); Stewart v. Capital Transit Co., 70 U.S.App.D.C. 346 , 347, 108 F.2d 1, 3 (1939), cert. denied, 309 U.S. 657 , 60 S.Ct. 515 , 84 L.Ed. 1006 (1940); Jackson v. United States, 48 App.D.C. 272, 275 (1919); Kreiner v. United States, 11 F.2d 722, 725 (2d Cir.), cert. denied, 271 U.S. 688 , 46 S.Ct. 639 , 70 L.Ed. 1152 (1926); but cf. Whitaker v. United States, 617 A.2d 499, 507-08 (D.C.1992) (where a jury has demonstrated confusion, court is obligated to give some effective reinstruction, including, but not limited to, modifying or correcting imprecise or erroneous instructions). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766462. Public record. Not legal advice.