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District of Columbia v. Chinn12/31/2003
death of a decedent even though it did not find assault." The court noted that White and Downs were factually different from Maddox, where the negligence allegations were dismissed due to their conclusory nature. White at 164 n.13.
Subsequently, in Etheredge v. District of Columbia, 635 A.2d 908 (D.C. 1993), this court held that a plaintiff, who had been shot in the back by a police officer who had responded to a call of domestic violence, had presented sufficient evidence to go to a jury on counts of both negligence and assault and battery. Here too there were two scenarios. The first was that the victim had been shot while standing motionless and unarmed on a staircase with his arms at his side. The second was that the victim had been told to freeze, disobeyed the order, and whirled around with what appeared to be a handgun, and the officer shot in self-defense. Again, the police regulation on the use of firearms was introduced into evidence and both sides presented expert testimony on the subject. While it is true that both claims involved the same act, that of shooting the victim, that act came at the inception of the battery and was itself the totality of the "excessive" force. It is also worth noting, although we found it unnecessary to rely on this aspect, that the evidence also included claims of a number of departures from the standard of care in the time leading up to the entry into the victim's home that could have obviated the need to use deadly force. In sum, " e held that the evidence was sufficient to go to the jury on both counts, but we made clear that the two claims were separate and distinct, even though 'related,' and that the two counts were supported by different evidence." Tinker, supra, at 63 n.5 (discussing Etheredge).
This court also considered this issue in District of Columbia v. Evans, 644 A.2d 1008 (D.C. 1994). In that case, police were called to the scene where the decedent was reported to be having a seizure. The police claimed the decedent was under the influence of drugs, had a knife, came at them, and was shot and killed in self-defense, whereas Evans claimed that the officers, despite being told the decedent was an epileptic, shot him while he was standing in an alley with nothing in his hands. The decedent's mother sued on several grounds including 42 U.S. ยง 1983 (unreasonable seizure), assault and battery, and various negligence claims. The trial court ruled that this was an effort to convert an intentional tort into a negligence claim and granted the defendants' motion for directed verdict as to the negligence claims. Id. at 1020. The jury found for the defendants on the assault and battery claim. On appeal, we concluded:
lthough the jury verdict on the assault and battery claims indicates that the officers did not act deliberately when they shot Virtus Evans, this does not preclude plaintiff from claiming that the officers were negligent in shooting Evans. Nor does it preclude litigation of plaintiff's theory that the officers' conduct was negligent during the period of time leading up to the shooting.
Id. at 1019-20. Relying on Downs and White, supra, we stated that a separate negligence action had been alleged. The court pointed in particular to the same departmental regulation concerning the use of firearms and to expert testimony concerning its violation.
Looking to the totality of this case law, we think it can reasonably be said that this court has adopted a consistent approach in assessing actions for both negligence and assault and battery arising out of similar incidents. " here there is sufficient evidence to submit to a jury the question of assault and battery, there may be, on the facts of a particular
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