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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CV-431

STEPHEN M. SULLIVAN, APPELLANT,

 

v.

ABOVENET COMMUNICATIONS, INC., APPELLEE.

Appeal from the Superior Court of the 

District of Columbia

Civil Division

(CAB-2045-12)

(Hon. Laura A. Cordero, Trial Judge)

(Argued February 24, 2015 Decided March 26, 2015)

Gregory S. Smith, with whom Lawrence S. Lapidus was on the brief, for 

appellant. 

Robert B. Hetherington, with whom Amy Leete Leone was on the brief, for 

appellee.

Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and KING, 

Senior Judge.

BLACKBURNE-RIGSBY, Associate Judge: Appellant Stephen Sullivan filed a 

negligence action against appellee AboveNet Communications, Inc. (“AboveNet”)

and the District of Columbia (“District”), alleging that he sustained serious injuries 

after he lost his footing on the uneven surface surrounding a manhole cover that 
2

was installed by AboveNet. The jury concluded that the District was not negligent, 

but rendered a verdict against AboveNet and awarded Sullivan $300,000 in 

damages.1 Notwithstanding the jury‟s award to Sullivan, the trial court thereafter 

granted AboveNet‟s pending motion for judgment as a matter of law made at the 

close of Sullivan‟s case2because it concluded that Sullivan failed to establish: (1) 

AboveNet was responsible for the condition; (2) AboveNet had constructive notice 

of the defect; and (3) the appropriate standard of care for restoring road surfaces 

after construction. Each failure individually was fatal to Sullivan‟s claim of 

negligence.

Based on the forthcoming reasons, we hold to the contrary that Sullivan 

presented enough evidence to allow a jury to decide whether AboveNet was 

negligent in failing to keep the area surrounding the manhole cover level, and 

therefore reverse the trial court‟s decision granting AboveNet‟s motion for 

judgment as a matter of law. Accordingly, on remand, the trial court is to reinstate 

the jury verdict and award.

 

1

Sullivan filed suit against the District for its failure to monitor and inspect 

AboveNet‟s work. However, the jury rendered a verdict in the District‟s favor, and 

Sullivan does not challenge that decision on appeal.

2

 See Super. Ct. Civ. R. 50 (a).
3

I. Factual Background

At approximately 4:55 p.m. on March 4, 2009, Sullivan left his place of 

work located at 50 F Street, Northwest, Washington, D.C. and took his normal 

route home by heading eastbound toward North Capitol Street for Union Station. 

He stopped at the intersection point between F Street, North Capitol Street, and 

Massachusetts Avenue, and waited for the crosswalk sign to change. As he 

proceeded to cross the intersection, Sullivan felt his right foot “catch on 

something.” As he stumbled to balance himself, his right foot encountered a

second obstruction and caused him to fall, with his right shoulder taking the brunt 

of the impact by striking the curb of North Capitol Street. Although Sullivan did 

not initially see what had tripped him, as he was lying on the street, he could 

“clearly” see that his foot had first gotten caught on the “edge of [a] manhole 

cover,” and that his foot then tripped on the “depression surrounding the manhole.” 

Sullivan believed that absent the depression he would have been able to regain his 

balance.

Passing individuals helped Sullivan stand back up and although he 

immediately felt pain that was “somewhat severe,” he nonetheless believed that he 

was healthy enough to continue to Union Station to go home. On the train ride, 
4

however, Sullivan began to feel “pain, a lot of pain . . . [that] was very, very 

excruciating at times.” And after returning home, Sullivan was taken to the 

emergency clinic and then an orthopedic surgeon,3 who diagnosed Sullivan with a

“pretty complex fracture” of his right shoulder, whereby the socket and ball have

“completely dislocated.” Sullivan thereafter underwent intensive surgery, missed 

thirteen days of work, and attended numerous physical therapy and follow-up 

sessions for about one year after the initial fall. He filed suit against AboveNet for 

negligently creating the condition around the manhole cover that caused his fall, 

and against the District for its failure to monitor and inspect the work.

At trial, Sullivan did not call any employees or representatives of AboveNet 

as witnesses to prove that AboveNet was actually the party responsible for the 

condition. Instead, Sullivan relied almost exclusively on a set of permits issued by 

the District of Columbia Department of Transportation (“DDOT”) to AboveNet for 

the purpose of excavating and installing electrical conduits, a telecom connection,

and a new manhole at the location of “50 F Street, [N.W.], Washington, D.C. 

20001,” from December 1, 2008 through May 5, 2009. The claimed inference 

being that AboveNet had installed the manhole cover at the intersection of F Street 

 

3

The doctor, David Zijerdi, M.D., testified as to Sullivan‟s injuries and 

treatment at trial pursuant to a videotaped deposition taken on January 28, 2014.
5

and North Capitol Street based on these permits, and had caused a depression to 

form around it.

4

To demonstrate that AboveNet had notice of the depression, Sullivan called 

his former co-worker Jennie Lam-Nagata, who took pictures of the manhole cover 

and depression approximately two weeks after Sullivan‟s fall and testified that she 

had tripped on the same “uneven repair road” herself a “couple of times” “less 

than” two weeks before Sullivan‟s accident. Lam-Nagata also maintained that 

there were no changes to the area from the times she tripped to when she took the 

photographs.5

Sullivan also presented Richard Balgowan as an expert witness on highway 

municipal engineering and asphalt pavement to testify that AboveNet had failed to 

maintain the proper standard of care during the pavement “backfilling” process

 

4

 Sullivan had sought to also proffer into evidence maps of the intersection 

between F Street and North Capitol Street as part of the work permits, claiming 

that they depicted AboveNet‟s traffic control plan and work being conducted at the 

intersection where the accident occurred. However, because the traffic control 

plan was insufficiently authenticated by Sullivan, the trial court did not admit the 

maps into evidence.

5

Lam-Nagata‟s photographs depicting a noticeable depression surrounding 

the manhole cover at the alleged intersection were admitted into evidence and 

available to the court on appeal.
6

after installing the new manhole, and that this caused the depressed surrounding 

surface area.

6

 Balgowan first testified as to his methodology. He stated that an

asphalt expert can determine the cause of sinking pavement even after construction 

was complete because: 

The American Association of State Highway and 

Transportation Officials ha[ve] manuals . . . with regard[]

to construction backfilling, using hot mix asphalt or 

asphalt to concrete. And if those standards are not 

complied with, there will be settlement that occurs in 

almost every single case. I‟m going to say in every case

. . . .

 

Balgowan also maintained that he could make a nationally recognized and 

accepted determination as to whether backfilling was improperly completed based 

solely on photographs of the condition, because the photographs constitute a 

“visual assessment of what has been the outcome of some previous work[,]” and 

that photos have been used at national conferences and seminars to diagnose likeproblems. Based on Balgowan‟s credentials and his testimony regarding his 

methodology, the trial court qualified him as an expert. In particular, the trial court 

 

6 During voir dire, Balgowan testified that he was a certified highway 

municipal engineer in ten states, having graduated from the New Jersey Institute of 

Technology with a bachelor‟s degree in civil engineering. He was also a certified 

asphalt technician and taught at Rutgers University and the University of 

Wisconsin on the subjects of work-zone safety and highway maintenance. He sat

on several committees of the Transportation Research Board, a branch of the 

National Academy of Sciences, and was familiar with the national standards of 

care applied to municipal road construction and design.
7

noted that Balgowan had demonstrated that the use of photographs for diagnosing 

roadwork issues was an established technique, and therefore presumptively 

reliable.

Balgowan next testified to the cause of the depression in this case. After 

reviewing the permits issued by DDOT to AboveNet and Lam-Nagata‟s 

photographs, Balgowan opined that the backfilling work performed by AboveNet 

after installing the new manhole was improper because if AboveNet had

“follow[ed] established standards and guidelines for backfilling and compacting, 

you will not get that kind of settlement [i.e., depression].” He elaborated that, in 

order to avoid “settlement” of the type found here, once a company finishes 

backfilling the pavement, it must then “compact it” to eliminate the “air voids 

between the little particles.” Otherwise, vibrations caused by vehicles driving past 

will cause depressions in the surface area to start forming. Balgowan dismissed 

the possibility that this depression would meet the acceptable standard even for 

“temporary” patches, as opposed to a more permanent restoration, or that a recent 

snow storm could have caused the problem. Balgowan maintained that a 

“shortcut” was taken here, and that “maybe another hour[‟s]” worth of work 

was needed to avoid this kind of settlement. However, Balgowan admitted 

that he never actually visited the location of the incident or conducted any 
8

additional investigation other than a review of the photographs, but 

maintained that “[n]o additional investigation was required.” During crossexamination, Balgowan also conceded that — based on his understanding —

AboveNet did not do the actual roadwork.

At the end of Sullivan‟s case, the District and AboveNet filed Rule 50 (a)

motions for judgment as a matter of law. AboveNet principally claimed that 

Sullivan introduced no evidence that AboveNet actually performed the poor work 

alleged here. AboveNet made note of Balgowan‟s cross-examination testimony, in 

which he answered “no” when asked if it was his understanding that AboveNet 

“did this work.” AboveNet also argued that Sullivan presented no evidence as to 

how long the depression existed or whether AboveNet knew about it to infer 

notice. After an extended colloquy between the trial court and the parties on these 

issues, the trial court reserved ruling on the motions and the defense began its case.

As part of its defense, the District called James T. Henry, a DDOT 

supervisory engineering technician, to testify about the city‟s permit and inspection 

process, and the obligations of the permit holder. Henry noted that in 2010, he 

conducted an inspection of the intersection between F Street and North Capitol 

Street after a claim was filed that someone had been injured while crossing and 
9

observed that a new manhole was installed at the intersection “labeled AboveNet.” 

In addition, later on, in response to AboveNet‟s counsel‟s question as to whether 

Henry believed “AboveNet did the work,” Henry stated: “That‟s correct.”

The District also read into evidence some of AboveNet‟s interrogatory 

responses for the purpose of demonstrating that AboveNet had some responsibility 

over the work performed. Specifically, AboveNet responded that “Jones Utilities 

Construction” was contracted by AboveNet “to excavate certain areas of North 

Capitol Street, [N.W.], E Street, [N.W.], and F Street, [N.W.] in relation to the 

installation of fiber optic cables[,]” and that “[t]his work was performed pursuant 

to the permits issued by the District of Columbia.” AboveNet also admitted in its 

interrogatory responses that “[t]he subject manhole was a new installation” related 

to the permits. At the close of the defense‟s case, the District and AboveNet 

renewed their Rule 50 (a) motions, but the trial court again reserved ruling.

The jury subsequently returned a verdict in favor of the District, but against 

AboveNet, and awarded Sullivan $300,000 in damages. After the trial court 

dismissed the jury, the trial court took to the issue of resolving the pending Rule 50 

(a) motions made at the close of Sullivan‟s case and again at the close of the

defense. Preliminarily, the trial court noted that “[d]amages has never been an 
10

issue in this case[,]” and that the issue in this case has always been about

establishing breach. First, the trial court concluded that Lam-Nagata‟s testimony 

that she had tripped at the same location “maybe two weeks, or less than that” prior 

to Sullivan was insufficient to establish constructive notice, and that this was the 

only testimony referencing a timeframe. The trial court determined that there was 

no clear timeframe, based on this testimony, on how long the depression had been 

present because Lam-Nagata never clarified when she first saw the depression or 

whether she had “tripped twice on the same day or different days.” 

However, even assuming that there was constructive notice, the trial court 

took extensive issue with Sullivan‟s lack of evidence that AboveNet was the party 

actually responsible for installing the manhole and backfilling the pavement. 

Sullivan‟s evidence on this point relied almost exclusively on the DDOT permits, 

and the court questioned “how we get from 50 F Street, Northwest [(the work 

location listed on the permits)] to the intersection of North Capitol and F Street 

[(the location of the accident)].” The court also noted that Sullivan‟s expert 

Balgowan explicitly said “no” in response to AboveNet‟s question asking whether 

it was his understanding that AboveNet did the work. Lastly, the trial court 

concluded that Balgowan also failed to identify “any concrete standards upon 

which a finding of negligence could be based.” The court noted that, while
11

Balgowan referenced many standards, there was “never any effort to elicit what 

those standards exactly were, and how the conduct of . . . AboveNet deviated from 

those specific standards.” 

Sullivan‟s counsel objected, observing that the court appeared to have 

granted a “Rule 50 motion based on evidence as it existed at the close of plaintiff‟s 

evidence,” which he did not think that the court, “procedurally, ha[d] the power to 

do . . . at this stage.” Counsel instead noted that the appropriate standard was to 

consider all of the evidence in the record, including the defense‟s case, and that 

there was clear evidence that AboveNet had done the work pursuant to the permits

in the full record. The trial court disagreed, explaining that it had simply taken the 

previous Rule 50 (a) motion made at the close of Sullivan‟s case “under 

advisement.” Accordingly, the trial court granted AboveNet‟s pending motion for 

judgment as a matter of law filed at the end of Sullivan‟s case, and this appeal by 

Sullivan followed.

II. Discussion

This court is “obliged to respect the jury‟s prerogatives.” NCRIC, Inc. v. 

Columbia Hosp. for Women Med. Ctr., Inc., 957 A.2d 890, 902 (D.C. 2008). 
12

Therefore, “[o]ur review of the trial court‟s grant of a [m]otion for [j]udgment as a 

[m]atter of [l]aw is de novo[.]” Hill v. Medlantic Health Care Grp., 933 A.2d 314, 

322 (D.C. 2007). “A trial court may grant a motion for judgment as a matter of 

law only if no reasonable juror, viewing the evidence in the light most favorable to 

the prevailing party, could have reached the verdict in that party‟s favor.” NCRIC, 

Inc., supra, 957 A.2d at 902 (citation and internal quotation marks omitted). 

Accordingly, “[a]s long as there is some evidence from which jurors could find 

that the party has met its burden, a trial judge must not grant a [motion for 

judgment as a matter of law].” Scott v. James, 731 A.2d 399, 403 (D.C. 1999)

(citation and internal quotation marks omitted). Further, “[i]f it is possible to 

derive conflicting inferences from the evidence, the trial judge should allow the 

case to go to the jury.” Majeska v. District of Columbia, 812 A.2d 948, 950 (D.C. 

2002) (citations and internal quotation marks omitted). The trial court‟s grant of a 

motion for judgment as a matter of law is appropriate, however, “when the jury has 

no evidentiary foundation on which to predicate intelligent deliberation and reach a 

reliable verdict.” Scott, supra, 731 A.2d at 403 (citations and internal quotation 

marks omitted). In order to prove negligence, Sullivan must provide evidence that:

“(1) [AboveNet] owed a duty of care to [Sullivan], (2) [AboveNet] breached that 

duty, and (3) the breach of duty proximately caused damages to [Sullivan].” Tolu 
13

v. Ayodeji, 945 A.2d 596, 601 (D.C. 2008) (citations and internal quotation marks 

omitted). 

On appeal, Sullivan challenges all three bases on which the trial court 

granted AboveNet‟s motion for judgment as a matter of law. The issues of party 

responsibility and constructive notice pertain to whether AboveNet owed Sullivan 

a duty of care, while the adequacy of the expert‟s testimony concerns whether 

AboveNet breached the pertinent standard of care assuming it had such a duty. 

See, e.g., Youssef v. 3636 Corp., 777 A.2d 787, 794 (D.C. 2001); see also Snyder v. 

George Wash. Univ., 890 A.2d 237, 244 (D.C. 2006). We review each issue in 

turn.

A. Evidence of Party Responsibility

Sullivan first argues that the trial court erred in concluding that there was 

insufficient evidence to prove that AboveNet actually did the work alleged in this 

case. He claims that the full record definitely included evidence that the “work had 

been performed under AboveNet‟s permit and direction.” We agree. 
14

At the end of trial, the following evidence was presented to the jury for 

deliberation. First, Sullivan had proffered into evidence DDOT permits 

establishing that between December 1, 2008 and May 5, 2009, AboveNet was

granted a permit by the city to perform work at “50 F Street, [N.W.], Washington, 

D.C. 20001.” AboveNet was to excavate the road and construct a trench to install

electrical conduits and a telecom connection, and install a new manhole. Second, 

during the District‟s defense, the District called DDOT supervisor Henry, who 

testified that the manhole cover bore AboveNet‟s name, and confirmed that

“AboveNet did the work.” Third, the District also read into evidence AboveNet‟s 

own interrogatory responses stating that the DDOT permits covered the excavation 

of North Capitol Street and F Street, and that AboveNet had contracted Jones 

Utilities Construction to do the work. There is no doubt that under normal 

circumstances there was enough evidence for the jury to reason that AboveNet was 

the party responsible for the condition.7 

 

7

The fact that there was somewhat conflicting evidence as to whether 

contractor Jones Utilities Construction or AboveNet itself was responsible for the 

roadwork is irrelevant in determining AboveNet‟s potential liability. First, all 

inferences are viewed in the light most favorable to the non-moving party, and so 

we view the evidence in favor of holding AboveNet personally responsible for 

creating the condition. See Majeska, supra, 812 A.2d at 950. Second, during 

AboveNet‟s opening statement, counsel admitted that AboveNet had a project 

manager, Kris Kobylski, “on this site the entire time the work was being done from 

early January until late April.” Consequently, even if Jones Utilities Construction 

was contracted to do the work, AboveNet, as the on-site managing entity, still 

(continued...)
15

However, this was not one of those normal circumstances because it appears 

the trial court expressly limited its decision to grant AboveNet‟s motion for 

judgment as a matter of law to the evidence produced at the end of Sullivan‟s case

(i.e., solely to the permits), even though it had waited until after the jury rendered a 

verdict to make its decision. AboveNet counters that the trial court had the 

authority to make this decision but cites to no direct or persuasive case law. Based 

on its brief, it also seems that AboveNet believes that this court‟s review should 

similarly be limited to the evidence presented as of the close of Sullivan‟s case. 

Both assessments are incorrect.

First, we are not bound by the trial court‟s decision to limit its ruling to the 

evidence presented by Sullivan. See, e.g., Silva v. Worden, 130 F.3d 26, 30 (1st

Cir. 1997) (“We consider all evidence offered during trial, including evidence 

introduced by the defendants. We do this notwithstanding the defendants‟ motion 

for directed verdict at the end of [the plaintiff‟s] case and the court‟s statement that 

it would rule, although at the close of all evidence, only on the plaintiff‟s 

evidence.”). On appeal, this court conducts a de novo review of the record, 

 

(...continued)

owed a duty to pedestrians. See Traudt v. Potomac Elec. Power Co., 692 A.2d 

1326, 1334-35 (D.C. 1997) (approving a theory of negligence liability whereby 

employer of independent contractor retained “supervisory control” of the work). 
16

viewing all of the evidence in the light most favorable to the non-moving party in 

deciding whether a motion for judgment as a matter of law was appropriate. See, 

e.g., Scott, supra, 731 A.2d at 403; see also Boyrie v. E & G Prop. Servs., 58 A.3d 

475, 477 (D.C. 2013). Here, our review of the record indicates that there was 

evidence that AboveNet did the work. 

Second, although we do not dispute that the trial court may reserve ruling on 

a Rule 50 (a) motion made at the close of the plaintiff‟s case until after the jury 

verdict,8 we disagree that the trial court may decide the reserved motion based 

solely on the record as it existed at the close of the plaintiff‟s case. As explained in 

Teneyck v. Omni Shoreham Hotel, 361 U.S. App. D.C. 214, 229, 365 F.3d 1139, 

1154 (2004), with regard to the equivalent Fed. R. Civ. P. 50 (a):9

[Rule 50 (a)] does not authorize a trial judge, after the 

defense has presented its case (in whole or in part), to 

 

8

 Contrary to Sullivan‟s claim, there is no requirement that a party raise a 

Rule 50 (b) motion after the jury renders its verdict when the trial court has not 

entered judgment and instead conducts a hearing on a reserved Rule 50 (a) motion. 

See Marcel Hair Goods Corp. v. Nat’l Sav. & Trust Co., 410 A.2d 1, 5 (D.C. 1979) 

(“To hold a party accountable for failing to interject a [Rule 50 (b)] motion when 

the trial court conducts a post-verdict hearing on a reserved [Rule 50 (a)] motion 

would be irrational. Super. Ct. Civ. R. 1 directs that the rules be „construed to 

secure the just, speedy, and inexpensive determination of every action.‟”). 

9

 Although not binding, this court looks to decisions of the federal courts as 

persuasive authority when interpreting Super. Ct. Civ. R. 50. Street v. Hedgepath, 

607 A.2d 1238, 1243 n.5 (D.C. 1992).
17

revisit, and grant, a defense motion for judgment as a 

matter of law made at the close of the plaintiff‟s case 

without considering, in addition to the evidence 

presented in the plaintiff‟s case, the evidence presented 

by the defense.

(quoting Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290,

1305 n.31 (11th Cir. 1998)). We are persuaded by the federal interpretation of 

Rule 50 (a). To hold otherwise would unacceptably exalt “form over substance,”

whereby the trial court‟s decision to take a case away from the jury is based more 

on procedural formalities than fairness and facts on the ground. See, e.g., District 

of Columbia Office of Tax & Revenue v. Shuman, 82 A.3d 58, 67-69 (D.C. 2013). 

Moreover, such a holding is inherently incompatible with this court‟s standard of 

review on appeal to conduct a de novo review of the full record. See Hill, supra,

933 A.2d at 322. Therefore, to clarify, we hold that when a motion for judgment 

as a matter of law is made at the close of the plaintiff‟s case but a decision is 

reserved until after the defense had presented its case, the trial court must consider 

the full record as it exists at the time in deciding the reserved motion.

10

 

10 Alternatively, AboveNet‟s own counsel may have judicially admitted to 

backfilling the road where Sullivan had fallen during his opening statement. 

Specifically, during AboveNet‟s opening statement made immediately after 

Sullivan presented its opening at the start of trial as to why AboveNet and the 

District were liable for his injuries, AboveNet‟s counsel stated openly that “[m]y

client [i.e., AboveNet] had done work in that area. They had done it according to 

the permits with [the District of Columbia], and they had done it properly.” 

AboveNet‟s counsel further explained to the jury that AboveNet was “not done 

(continued...)
18

B. Constructive Notice

“To make out a prima facie case of liability predicated upon the existence of 

a dangerous condition it is necessary to show that the party against whom 

negligence is claimed had actual notice of the dangerous condition or that the 

condition had existed for such length of time that, in the exercise of reasonable 

care, its existence should have become known and corrected.” Anderson v. 

Woodward & Lothrop, 244 A.2d 918, 918-19 (D.C. 1968) (per curiam). In 

deciding this issue, we reemphasize that, on appeal from the grant of a motion for 

judgment as a matter of law, this court will view the evidence in the light most 

favorable to the non-moving party and will give that party the benefit of every 

permissible inference from the evidence. See Majeska, supra, 812 A.2d at 950. 

 

(...continued)

yet.” And that, “[it] had only done the first phase of this construction. [It] had dug 

the trench. [It] had put in the backfill. [It] had put the temporary patch down. . . . 

So [it was] still in the process of this work being done.” Under such 

circumstances, it is arguable that AboveNet‟s counsel‟s unequivocal admission of 

responsibility constituted a binding judicial admission. See Bostic v. Henkels &

McCoy, Inc., 748 A.2d 421, 423 n.2 (D.C. 2000); see also Bandini v. Bandini, 935 

N.E.2d 253, 265 (Ind. Ct. App. 2010) (“Generally, counsel‟s opening statement is 

not evidence . . . . However, a clear and unequivocal admission of fact, or a formal 

stipulation that concedes any element of a claim or defense, is a binding judicial 

admission.”). That being said, we need not decide whether AboveNet‟s counsel 

affirmatively made a binding judicial admission given our prior holding that the 

trial court should have reviewed the whole record when ruling on the reserved Rule 

50 (a) motion.
19

Further, “we recognize that an issue such as constructive notice is peculiarly within 

the province of the jury,” as long as the jury does not engage in “idle speculation.” 

Marinopoliski v. Irish, 445 A.2d 339, 341 (D.C. 1982).

Here, Sullivan concedes that AboveNet did not have actual notice of the 

depression, but argues that Lam-Nagata‟s testimony that she had herself tripped on 

the same surface area a couple of times about “two weeks” prior to Sullivan‟s fall 

was sufficient to infer constructive notice, and therefore was an issue for the jury to 

decide. Assuming without deciding whether Sullivan even needed to prove 

constructive notice and contrary to the trial court‟s conclusion that Lam-Nagata‟s 

testimony was insufficient to establish a reasonable timeframe, this court is of the

opinion that, viewed in the light most favorable, her statement, coupled with her 

verification that the depression had not changed between the times that she fell and 

her photographs of the depression taken approximately two weeks after Sullivan 

fell (which Sullivan himself also confirmed looked the same), permitted the

inference that the depression had existed for at least two weeks before the accident. 

See, e.g., Wilson v. Wash. Metro. Area Transit Auth., 912 A.2d 1186, 1190 (D.C. 

2006) (“Although each case has its own peculiar circumstances, the duration of the 

alleged hazard is an important factor in establishing constructive notice.”). The 

fact that no specific dates were given by Lam-Nagata does not render, in and of 
20

itself, her testimony insufficient. Compare Bostic, supra note 10, 748 A.2d at 426-

27 (holding Bostic‟s testimony that the dangerous walkway had existed for 

“[s]everal months” sufficient to establish constructive notice) with Wilson, supra, 

912 A.2d at 1190-91 (concluding that Wilson‟s testimony that she was on the bus 

for thirty minutes before she slipped on “dry and sticky” soda was insufficient to 

establish how long the hazard existed). Consequently, Lam-Nagata‟s testimony, 

together with the fact that the defect was located at a major intersection, and the 

DDOT permits and other evidence establishing that AboveNet was actively 

working in the area from December 2008 to May 2009,11 was enough evidence to 

let the jury decide whether AboveNet should have known about the depression in 

time to correct it. Cf. Briscoe v. District of Columbia, 62 A.3d 1275, 1279-80

(D.C. 2013) (concluding that the District lacked notice even if the defective 

curbstone existed for as long as two years because it was not located at a busy or 

conspicuous location).

 

11 As previously mentioned supra note 7, during AboveNet‟s opening 

statement, counsel also conceded that AboveNet had a project manager, Kris 

Kobylski, “on this site the entire time the work was being done from early January 

until late April[,]” which was more than a month after Sullivan had been injured.
21

C. Expert Testimony

Lastly, Sullivan takes issue with the trial court‟s finding that his expert‟s 

testimony failed to establish a concrete standard of care under which a claim of 

negligence can be maintained. Preliminarily, he claims that Balgowan‟s testimony 

was not even necessary because a tripping hazard was “within the realm of 

common knowledge and everyday experience[.]” Bostic, supra note 10, 748 A.2d 

at 425. Without deciding whether Balgowan‟s testimony was necessary, we 

conclude that Balgowan‟s testimony was sufficient to establish an applicable

standard of care by which AboveNet‟s work could be measured. 

“When an expert‟s testimony is required, the expert must articulate and refer 

to a standard of care by which the defendant‟s actions can be measured.” District 

of Columbia v. Carmichael, 577 A.2d 312, 314 (D.C. 1990). This is because “[i]f 

the standard itself is not proven, then a deviation from that standard is incapable of 

proof.” Id. In so doing, when “normative standards are used by an expert as a 

basis for assessing negligence, at the very least the expert must be specific as to 

what standards were violated and how they were violated.” Id. at 315. 

“Generalized references” to national standards are insufficient to establish a 

standard upon which the defendant‟s actions can be measured. See Briggs v. 
22

Wash. Metro. Area Transit Auth., 375 U.S. App. D.C. 343, 350, 481 F.3d 839, 846 

(2007). 

For example, in Carmichael, we concluded that appellees‟ expert witness on 

prison security failed to establish an adequate standard of care to determine 

whether the District was negligent in controlling contraband weapons within its 

prison. 577 A.2d at 314-15. Specifically, his conclusion that there were “too 

many shanks” was based primarily on his own experiences, and his references to 

national and District of Columbia standards were generalized, without mentioning 

a specific standard or regulation that the District had breached. Id. In contrast, in 

District of Columbia v. Price, 759 A.2d 181, 183-84 (D.C. 2000), this court 

concluded that appellee‟s expert on police practices sufficiently established the 

standard of care assigned to police when a prisoner in custody is ill or intoxicated. 

Specifically, the expert testified that, under both the national standard of care and 

specific District municipal regulations, the police were required to obtain 

immediate medical attention for the prisoner under such circumstances, and that 

the District‟s response in this case had been a deviation from those standards 

because the officer failed to call an ambulance “immediately upon coming at the 

scene of the accident.” Id. at 184.
23

Balgowan‟s testimony leans closer to the expert‟s testimony in Price than 

the one in Carmichael. Despite the fact that Balgowan only referenced “generally” 

to the standards set forth by the American Association of State Highway and 

Transportation Officials and did not appear to give a specific provision that he 

believed AboveNet had breached, Balgowan at the very least did explain that under 

the “established standards and guidelines for backfilling and compacting,” the 

material must be compacted during the backfilling process to avoid air pockets

from forming and depressions from occurring. He further opined that there was a 

clear deviation from that practice in this case because, if those standards had been 

complied with, there would be no depression that was evident in the photographs

that he had reviewed. This testimony, although still arguably rather broad, is 

different from the testimony of the Carmichael expert because Balgowan, at the 

very least, specified “as to what standards were violated” (the backfilling process 

during restoration) and “how they were violated” (the failure to compact the 

pavement to prevent air bubbles causing the settlement). Carmichael, supra, 577 

A.2d at 315.

The fact that Balgowan was unsure whether AboveNet actually did the 

roadwork is unimportant because, as an expert witness on road repair, his purpose 

was to establish the baseline standard of care and whether the roadwork deviated
24

from that standard. The full record already provided sufficient evidence that 

AboveNet did the work and, therefore, had such a duty of care. Likewise, it is also 

inconsequential that Balgowan did not know exactly how the backfilling was 

actually performed in this case because he explained that the use of photographs 

alone was a nationally accepted form of diagnosis for roadwork and the trial court 

accepted his methodology. See, e.g., President & Dirs. of Georgetown Coll. v. 

Wheeler, 75 A.3d 280, 291-92 (D.C. 2013). Any shortcomings in Balgowan‟s 

analysis “went to the weight of his testimony rather than its admissibility and 

therefore” presented an issue for the jury to decide. NCRIC, Inc., supra, 957 A.2d 

at 906.

III. Conclusion

There was evidence in the full record establishing each element of 

negligence. Accordingly, the trial court erred in granting AboveNet‟s reserved 

motion for judgment as a matter of law. We therefore reverse the trial court‟s 

order and remand the case for the trial court to reinstate the jury verdict and award.

So ordered.