Owen v. United States , 899 F. Supp. 2d 71 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARY JANE OWEN,
Plaintiff,
v. Civil Action No. 10-01540 (BAH)
Judge Beryl A. Howell
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION
Plaintiff Mary Jane Owen filed a Complaint alleging that the defendant United States of
America is liable for damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671, et seq., because the plaintiff was injured using a wheelchair lift negligently
maintained and operated by an unknown employee of the John F. Kennedy Center for the
Performing Arts (“Kennedy Center”).1 See Complaint (“Compl.”), ECF No. 1, ¶¶ 1, 6, 8-10.
Following a period of discovery, the defendant filed a Motion for Summary Judgment in which it
argues, inter alia, that the plaintiff has not made out a prima facie case of negligence. See ECF
No. 13. For the reasons explained below, the Court agrees and will GRANT the defendant’s
motion for summary judgment.
1
“[T]he Kennedy Center constitutes a federal agency covered by the FTCA.” Polcari v. John F. Kennedy Ctr. for
Performing Arts, 712 F. Supp. 230, 231-32 (D.D.C. 1989) (citing 20 U.S.C. §§ 76h, et seq.); accord Makarova v.
United States, 201 F.3d 110, 113-14 (2d Cir. 2000).
I. FACTUAL AND PROCEDURAL HISTORY2
The plaintiff is a former employee of SD&A Teleservices, Inc. (“SD&A”). See Def.’s
Statement of Facts Not in Material Dispute (“Def.’s Facts”),3 ECF No. 13-3, ¶ 1; Pl.’s Mem. in
Supp. of Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 14-3, at 2. SD&A is a
private “telemarketing firm retained by the Kennedy Center to conduct on-site telephone
solicitation and fundraising campaigns.” Def.’s Facts ¶ 1; Pl.’s Opp’n at 2.4 The plaintiff at the
time of the incident at issue in this lawsuit worked in an SD&A office located on what is known
as the “second tier” of the Kennedy Center building. See Def.’s Facts ¶ 2; Pl.’s Opp’n at 2.
The plaintiff has been a partial quadriplegic since 1986 and “is confined to her motorized
wheelchair for most of the day.” Def.’s Facts ¶ 5; Pl.’s Opp’n at 2. At all times relevant to this
action, the plaintiff “used a Pronto M91 model motorized wheelchair manufactured by the
Invacare Corporation.” Def.’s Facts ¶ 6 (citing Deposition of Mary Jane Owen (“Owen Dep.”),
ECF No. 13-5, at 15-16; Expert Report of Jeffrey E. Fernandez, Ph.D. (“Fernandez Report”),
ECF No. 13-7, at 7). The wheelchair in its entirety—the frame plus the battery—weighs 273
pounds. See Def.’s Facts ¶ 8 (citing Fernandez Report at 7). The plaintiff at the time of the
incident weighed approximately 222 pounds, so the combined weight of the plaintiff and the
2
The Complaint alleges minimal factual allegations and the plaintiff failed to file “a separate and concise statement”
of facts that points to “genuine issue[s] necessary to be litigated, which shall include references to the parts of the
record relied on to support the statement.” Local Civil Rule 7(h)(1). The Court relies heavily on the Defendant’s
Statement of Facts, see ECF No. 13-3, and “will treat all of the factual assertions in the [Defendant’s] Statement of
Material Facts Not in Dispute as undisputed.” Thompson v. Linda & A., Inc., 779 F. Supp. 2d 139, 146 (D.D.C.
2011); see also FED. R. CIV. P. 56(c) (“A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by . . . citing to particular parts of materials in the record . . . or . . . showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.”).
3
The defendant titled both ECF Nos. 13-2 and 13-3 “Defendant’s Memorandum of Points and Authorities in
Support of the Motion for Summary Judgment.” ECF No. 13-3, however, contains the “Statement of Facts,” while
ECF No. 13-2 is the “Memorandum in Support.” The Court will refer to ECF No. 13-3 as “Def.’s Facts” and to
ECF No. 13-2 as “Def.’s Mem.”
4
The plaintiff was not an employee of the Kennedy Center or the federal government at any time relevant to this
action. See Def.’s Facts ¶ 4; Pl.’s Opp’n at 2.
2
wheelchair in its entirety (“excluding additional weight of clothing, bags, or other personal
effects”) was nearly 500 pounds. Def.’s Facts ¶¶ 9-10 (citing Fernandez Report at 8-10, 14).
The only way for the plaintiff to reach her place of employment on the second tier of the
Kennedy Center was to use the Garaventa GSL-1 model wheelchair lift. See Def.’s Facts ¶¶ 11-
13 (citations omitted); Pl.’s Opp’n at 2; Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s
Mem.”), ECF No. 13, at 4.5 “The GSL-1 lift consisted of a wall-mounted track to which was
affixed a platform that ran along the track and lifted the user above the stairs.” Def.’s Mem. at 4
(citing Fernandez Report at 6 (Fig. 2), 13 (Fig. 8)). The platform was equipped with ramps — or
platform lips — “at its front, side, and rear,” as well as “with two bar guard safety arms at the
front and rear of the lift.” Def.’s Mem. at 5; Def.’s Facts ¶¶ 18-19 (citing Fernandez Report at 6,
13). The weight capacity limit of this lift is 450 pounds. See Def.’s Mem. at 4 (citing Fernandez
Report at 4).
The plaintiff “could not use the lift without the assistance of another person because it
was operated by a control panel mounted on the wall at the top of the stairs near the entrance to
the SD&A office.” Def.’s Mem. at 5 (citing Owen Dep. at 42-44); Def.’s Facts ¶ 20 (same).
“Using the wall-mounted control panel, the person assisting [the plaintiff] . . . would insert a key
into the control panel to turn on the platform controls of the lift.” Def.’s Mem. at 5; see also
Def.’s Facts ¶ 22 (citing Deposition of Amy Sloan (“Sloan Dep.”), ECF No. 13-6, at 15). The
plaintiff would then drive her wheelchair onto the platform. See Def.’s Mem. at 4; see also
Def.’s Facts ¶ 17 (citing Owen Dep. at 44-45). “Once [the p]laintiff was in place on the
platform, the control panel operator would then press a button that engaged the lift’s safety
5
The description of the features of the lift are taken from Def.’s Mem., ECF No. 13-2, at 4-6. The plaintiff agreed
with this description. See Pl.’s Opp’n at 2 (“The stairs had a wheelchair lift, accurately described in the . . .
Defendant’s Memorandum at 4-6.”). The Court assumes that the plaintiff refers to the defendant’s Memorandum,
ECF No. 13-2, and not the defendant’s Statement of Facts, ECF No. 13-3, based on the page numbers cited and the
contents of the documents. See supra note 3.
3
features.” Def.’s Mem. at 5 (citing Owen Dep. at 45); Def.’s Facts ¶ 23 (same). “[T]he lift
would then begin to operate and the platform would move along the track and deliver [the
p]laintiff to the end of the track at the top of the stairs.” Def.’s Mem. at 5; Def.’s Facts ¶ 27
(citing Owen Dep. at 42-45). “The control panel operator would then turn the key again, which
would disengage the bar guard safety arms and platform lips, allowing [the p]laintiff to drive off
the lift platform.” Def.’s Mem. at 5-6; Def.’s Facts ¶ 28 (citing Sloan Dep. at 15-16).
During the plaintiff’s period of employment with SD&A,6 she experienced recurring
problems with the lift as it sometimes stalled or “stopped mid-route, trapping the [p]laintiff until
the lift could be re-started.” Pl.’s Opp’n at 2 (citing Owen Dep. at 55-57; Sloan Dep. at 18-24).
“With regularity — at least once weekly — the lift would stall out when [the p]laintiff was riding
it.” Def.’s Facts ¶ 29 (citing Owen Dep. at 55-56; Sloan Dep. at 18-21, 24). “Sometimes the lift
could be restarted after waiting a while; other times, Kennedy Center technicians would have to
be summoned to repair the lift while [the p]laintiff remained on it.” Def.’s Facts ¶ 30 (citing
Owen Dep. at 56; Sloan Dep. at 22-23, 29). Though the Kennedy Center “properly maintained”
and “serviced” the lift on multiple occasions “when the need arose,” the plaintiff continued to
experience these problems and made several complaints regarding its operation. Def.’s Facts ¶
15 (citing Fernandez Report at 7, 14); Def.’s Facts ¶ 29; Pl.’s Opp’n at 3. One stalling incident
occurred where the plaintiff and her wheelchair had to be physically removed from the lift
because the lift would not restart. See Def.’s Facts ¶ 31 (citing Owen Dep. at 57; Sloan Dep. at
23).
About three months before the incident in question, the Kennedy Center’s Director of
6
The record is inconsistent about how long the plaintiff worked for SD&A at the Kennedy Center. In the plaintiff’s
answers to the defendant’s interrogatories, she suggests she was an employee only for “a couple of months,” see
Def.’s Mot. Summ. J., ECF No. 13-4, Ex. C (Pl.’s Answers to Def.’s Interrogatories (“Pl.’s Answers”)) ¶ 1, while
other places in the record suggest that she was there longer. See Pl.’s Opp’n at 6 (noting that employees observed
the wheelchair lift malfunctioning three months before the August 2008 incident).
4
Accessibility, Betty Siegel (“Director of Accessibility”), “met with [the p]laintiff and inspected
and tested the lift.” Def.’s Facts ¶ 32 (citing Declaration of Betty Siegel (“Siegel Decl.”) ¶¶ 5-9);
see also Pl.’s Opp’n at 6 (“[The plaintiff] met with . . . Betty Siegel, on or about May 21, 2008”
and the “[p]laintiff, Ms. Siegel, and [two] other employees of the Kennedy Center witnessed the
wheelchair lift both malfunctioning and functioning properly.”).7 The Director of Accessibility
“then asked [the p]laintiff to inform her” of the plaintiff’s weight and the weight of the
wheelchair so that the Director could assess her safety on the lift. Def.’s Facts ¶ 35 (citing Siegel
Decl. ¶ 9); see also Pl.’s Opp’n at 6 (“According to the email, Ms. Siegel alleges that the [sic]
asked the [p]laintiff for the combined weight of the [p]laintiff and her chair.”). The plaintiff
“promised to provide [the Director of Accessibility] with this information but never did.” Def.’s
Facts ¶ 36 (citing Siegel Decl. ¶ 9); see also Pl.’s Opp’n at 6 (“There is no record of any follow-
up.”). In fact, the combined weight of the plaintiff and her wheelchair “exceeded the weight
capacity limit of the wheelchair lift by almost 50 pounds.” Def.’s Facts ¶ 37 (citing Fernandez
Report at 11-12).
On the evening of August 29, 2008, the plaintiff again used the lift. See Def.’s Facts
¶ 38. The lift malfunctioned, and “[a]t some point during her use of the lift either [the p]laintiff
or the co-worker assisting her[8] manually raised the safety bar guard [arm] located behind [the
p]laintiff at the rear of the lift platform.” Def.’s Facts ¶¶ 38-39 (citing Fernandez Report at 12).9
7
The Defendant’s Statement of Facts sometimes cites to the Declaration of Betty Siegel, which the defendant did
not attach to any of its filings. The Declaration is therefore not part of the record. Most of the factual statements
from the Defendant’s Statement of Facts, which cite this missing Declaration and are included in this Opinion, are
repeated — though not supported by a record cite — in the Plaintiff’s Memorandum in Opposition.
8
The co-worker “is the only other eyewitness to the incident and could not be located by either party” in the course
of discovery. Def.’s Mem. at 7 n.6.
9
“The lift will not operate when the safety arms are in their vertical, upright positions.” Def.’s Facts ¶ 25 (citing
Sloan Dep. at 15; Fernandez Report at 6). “If the lift were, for whatever reason, to stop mid-course, the safety arms
would remain locked in their engaged, horizontal positions; the only way for the user to get off the lift in such a
5
The plaintiff and her wheelchair then “toppled over, backwards, off the lift platform and onto the
floor.” Def.’s Facts ¶ 40 (citing Fernandez Report at 12); see also Pl.’s Opp’n at 3.10 The co-
worker went for help at the SD&A offices, and the plaintiff’s supervisor called Kennedy Center
security personnel. See Def.’s Facts ¶¶ 41-42 (citing Sloan [Dep.] at 26-27).
Following this incident, the plaintiff submitted a Standard Form 95 to the General
Counsel’s Office at the Kennedy Center on April 23, 2009 seeking $5,000.00 in property
damages and $1,000,000.00 in personal-injury damages.11 See Pl.’s Opp’n at 3; Def.’s Facts ¶
43; Def.’s Mot. Summ. J., ECF No. 13-4, Ex. D (Letter from Andrew Bederman, Esq., to JoEllen
Dinges, Esq. (Apr. 23, 2009) (“Bederman Letter”)). The plaintiff, however, did not submit with
this Form any medical records or other documentation to support her claim. See Def.’s Facts ¶
situation would be manually to override the safety arms and yank one or both of them back into their vertical,
upright positions.” Def.’s Facts ¶ 26 (citing Sloan Dep. at 15; Fernandez Report at 6).
10
The plaintiff contends that she was “thrown from the lift platform,” see Pl.’s Opp’n at 3, but due to loss of
consciousness or memory loss she cannot recall what transpired, see Def.’s Mem. at 7 n.5 (citing Owen Dep. at 75,
77); see also Pl.’s Answers ¶ 6 (“[T]he lift came to a sudden stop. Plaintiff’s next clear memory is lying on the floor
at the bottom of the stairs with her wheelchair on top of her.”). Since the safety arms were manually raised,
however, the defendant contends that the plaintiff must have “dr[i]ve[n] her wheelchair up over the engaged
platform lip . . . with the result that she and her wheelchair toppled over, backwards, off the lift platform.” See
Def.’s Facts ¶ 40 (citing Fernandez Report at 12).
11
According to the U.S. Department of Justice:
Standard Form 95 is used to present claims against the United States under the [FTCA] for
property damage, personal injury, or death allegedly caused by a federal employee’s negligence or
wrongful act or omission occurring within the scope of the employee’s federal employment.
These claims must be presented to the Federal agency whose employee conduct gave rise to the
injury.
Standard Form 95 is not required to present a claim under the FTCA, but it is a convenient format
for supplying the information necessary to bring an FTCA claim . . . Form 95 must be presented to
the appropriate federal agency within two years after the claim accrues.
Civil Division Documents & Forms, U.S. DEP’T JUSTICE, http://www.justice.gov/civil/common/docs-forms.html
(last visited Oct. 17, 2012) (emphasis in original).
6
44; Bederman Letter. On March 12, 2010, the Kennedy Center denied the plaintiff’s claim. See
Def.’s Facts ¶ 45.12
The plaintiff then filed a Complaint in the United States District Court for the District of
Columbia.13 During discovery, the plaintiff filed a Rule 26(a)(1) Statement listing relevant
documents as well as names of relevant witnesses, see ECF No. 7, as well as a Rule 26(a)(2)
Statement with the names of two medical experts, both treating physicians of the plaintiff, see
ECF No. 8. Although the plaintiff alleged that the experts would testify as to the extent of her
injuries as well as to the cause of them (her fall on August 29, 2008), ECF No. 8 ¶¶ 1-2, the
plaintiff did not submit medical records or any other documents. On July 15, 2011, the
defendant submitted its Rule 26(a)(2) expert report by engineer Jeffrey E. Fernandez, PhD, PE,
CPE, which contains his analysis of the wheelchair lift and the resulting incident. ECF No. 12.14
In his report, Dr. Fernandez concluded that (i) the lift “will fail to operate” if the weight — as in
the case of the plaintiff plus her wheelchair — exceeds 450 pounds; (ii) “[t]he bar guard safety-
arm was manually raised and the wheelchair user intentionally drove over the platform lip”; and
(iii) “[t]he Kennedy Center performed maintenance and repairs as needed on the lift.” Fernandez
Report at 18.
12
The body of the letter sent on March 12, 2010, from Kennedy Center Assistant General Counsel JoEllen Dinges,
Esq., to the plaintiff’s counsel, Andrew Bederman, Esq., reads in its entirety:
We have considered, under the [FTCA], the claim for [the plaintiff] that you filed with [the
Kennedy Center] for an incident that occurred at the Kennedy Center on August 29, 2008. We are
writing to inform you, as [the plaintiff’s] personal representative, that this claim is hereby denied.
If your client is dissatisfied with this determination, she may submit a written request for
reconsideration based on new evidence, or she may file suit in an appropriate United States
District Court not later than six months after the date of mailing of this letter.
Def.’s Mot. Summ. J., ECF No. 13-4, Ex. E.
13
This case was originally assigned to Judge Roberts, but was later randomly assigned to the under-signed Judge on
January 21, 2011.
14
This document is also attached to the defendant’s Motion for Summary Judgment. See ECF No. 13-7.
7
The defendant then moved for summary judgment. See ECF No. 13.
II. LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be
granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Summary judgment is
properly granted against a party who “after adequate time for discovery and upon motion . . .
fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to demonstrate that there
is an “absence of a genuine issue of material fact.” Id. at 323.
In ruling on a motion for summary judgment, the Court must draw all justifiable
inferences in favor of the nonmoving party, and shall accept the nonmoving party’s evidence as
true. Anderson, 477 U.S. at 255; Estate of Parsons, 651 F.3d at 123; Tao, 27 F.3d at 638. The
Court is only required to consider the materials explicitly cited by the parties, but may on its own
accord consider “other materials in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to
be “genuine,” Estate of Parsons, 651 F.3d at 123, the nonmoving party must establish more than
“[t]he mere existence of a scintilla of evidence” in support of its position, Anderson, 477 U.S. at
252, and cannot simply rely on allegations or conclusory statements, Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would
enable a reasonable jury to find in its favor. See Anderson, 477 U.S. at 250. “If the evidence is
8
merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at
249-50 (citations omitted).
III. DISCUSSION
In its motion for summary judgment, the defendant argues that the plaintiff has failed to
make out a prima facie case of negligence because she did not put forth any expert testimony as
to the maintenance and operation of the wheelchair lift as required to establish a standard of care
for negligence claims under District of Columbia common law (“D.C. law”), and, furthermore,
that the doctrine of res ipsa loquitur does not absolve the plaintiff of this requirement. See
Def.’s Mem. at 12, 17; Def.’s Reply in Supp. of Mot. for Summ. J., ECF No. 17 (“Def.’s
Reply”), at 9-10.15 In response, the plaintiff contends “that expert testimony on the standard of
care is unnecessary” because the defendant “violated its duty to inspect and repair a problem,
when repeatedly put on notice,” Pl.’s Opp’n at 1, 7, and “res ipsa loquitur allows the trier of fact
to infer a lack of due care from the mere occurrence of an accident,” Pl.’s Opp’n at 8 (emphasis
in original) (internal quotation marks omitted).16 Since the plaintiff has not established the
applicable standard of care and cannot state a claim for negligence under D.C. law, the Court
must grant the defendant’s motion for summary judgment.
15
The defendant argues in addition that (i) the plaintiff’s “own negligence proximately contributed to her injuries”
and thus completely bars recovery of damages, see Def.’s Mem. at 13-16; and, relatedly, that (ii) the doctrine of res
ipsa loquitur does not apply because the plaintiff proffers no evidence suggesting that the incident is “of the kind
which ordinarily does not occur in the absence of someone’s negligence,” and because record evidence suggests that
the plaintiff’s voluntary conduct caused her injuries, see id. at 16-17. The Court need not resolve the issue of the
plaintiff’s contributory negligence, which would work to bar both her negligence claim as well as her claim that res
ipsa loquitur applies, since this case is resolved on different grounds.
16
The plaintiff also argues summarily in her Opposition to the instant motion that the guidelines promulgated under
the Americans with Disabilities Act (“ADA”) establish a standard of care regarding the provision and maintenance
of the lift. See Pl.’s Opp’n at 5-6. She does not raise this argument in her Complaint, and cites no authority for it.
Even assuming, arguendo, that the plaintiff’s argument were correct, she has offered no expert testimony regarding
how that standard of care applies to the particular facts in this case and how any breach of such standard of care
proximately caused the plaintiff’s injury.
9
A. Legal Standard for the FTCA and Negligence under D.C. Law
“In the FTCA, Congress waived the United States’ sovereign immunity for . . . ‘claims
against the United States, for money damages . . . for injury or loss of property . . . caused by the
negligent or wrongful act or omission of any employee of the Government while acting within
the scope of his office or employment.’” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18
(2008) (quoting 28 U.S.C. § 1346(b)(1)). The FTCA “authorizes private tort actions against the
United States ‘under circumstances where the United States, if a private person, would be liable
to the claimant in accordance with the law of the place where the act or omission occurred.’”
United States v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C. § 1346(b)(1)); accord Paige v.
Drug Enforcement Admin., 665 F.3d 1355, 1362 (D.C. Cir. 2012).
“To establish negligence, ‘the plaintiff has the burden of proving by a preponderance of
the evidence the applicable standard of care, a deviation from that standard by the defendant, and
a causal relationship between the deviation and the plaintiff’s injury.’” Robinson v. Wash.
Metro. Area Transit Auth., No. 11-cv-0723, 2012 U.S. Dist. LEXIS 60306, at *11 (D.D.C. May
1, 2012) (quoting Varner v. Dist. of Columbia, 891 A.2d 260, 265 (D.C. 2006)); see also Convit
v. Wilson, 980 A.2d 1104, 1123 (D.C. 2009); Hill v. Metro. African Methodist Episcopal Church,
779 A.2d 906, 908 (D.C. 2001); Messina v. District of Columbia, 663 A.2d 535, 537 (D.C.
1995).
To satisfy the first prong, the “plaintiff must put on expert testimony to establish what the
standard of care is if the subject in question is so distinctly related to some science, profession or
occupation as to be beyond the ken of the average layperson.” Convit, 980 A.2d at 1123; Hill,
779 A.2d at 908; Dist. of Columbia v. Arnold & Porter, 756 A.2d 427, 433 (D.C. 2000). “There
is, however, a partial exception to this rule,” which is that “no expert testimony is needed if the
10
subject matter is within the realm of common knowledge and everyday experience.” Briggs v.
Wash. Metro. Area Transit Auth., 481 F.3d 839, 845 (D.C. Cir. 2007) (citation omitted). In fact,
D.C. courts have “required expert testimony in a number of cases that, on first blush, appear to
be within the realm of common knowledge.” Id. “For example, the [D.C. Court of Appeals] has
held that the following subjects require expert guidance despite the fact that they might be
familiar to jurors: maintenance of leaning trees; application of hair relaxer; tightness of
handcuffs; cushioning for the ground underneath playground monkey bars; maintenance of street
lights to prevent falling light globes; time frame for ordering building materials on a construction
project; response when an arrestee is found hanging in his cell; and installation of a crosswalk,
instead of a stop sign, light, or crossing guard.” Id. (citations and quotation marks omitted).
Thus, “[t]he case law indicates that the ‘common knowledge’ exception to the expert testimony
requirement is recognized only in cases in which everyday experience makes it clear that jurors
could not reasonably disagree over the care required.” Id.A plaintiff’s failure to provide expert testimony to establish a standard of care where she
was required to do so would be fatal to her negligence claim. See Burke v. Air Serv. Int’l, Inc.,
685 F.3d 1102, 1106 (D.C. Cir. 2012) (noting that “under D.C. law, failure to establish the
standard of care is fatal to a negligence claim” (internal quotation marks omitted)); Flax v.
Schertler, 935 A.2d 1091, 1106-07 (D.C. 2007) (upholding summary judgment granted to
defendant because “fatal flaw in [plaintiff’s] case was the lack of an expert witness who would
opine that the [defendants] breached the standard of care”); see also Clark v. Dist. of Columbia,
708 A.2d 632, 634 (D.C. 1997) (affirming a directed verdict for the defendant where the
“appellant’s expert failed to provide sufficient testimony that the District violated a national
standard of care”).
11
B. The Plaintiff Was Required to Proffer Expert Testimony Concerning the
Maintenance and Operation of a Wheelchair Lift and Failed to Do So.
In her Complaint, the plaintiff alleged that the defendant owed her “a duty [to] ensure that
the wheelchair lift was properly maintained and repaired in a safe manner, with reasonable care
and prudence.” Compl. ¶ 8. She specifies that the defendant “breach[ed]” this duty when it
“operated and maintained the wheelchair lift in a negligent manner and carelessly failed to
properly inspect and repair the malfunctioning lift, properly operate the wheelchair lift while the
[p]laintiff was using it, failing to warn disabled patrons of a malfunctioning wheelchair lift, and
otherwise being negligent.” Id. ¶ 9. These allegations plainly rely upon the breach of a standard
of care regarding the proper maintenance and repair of a wheelchair lift.
Nevertheless, the plaintiff has proffered no expert testimony regarding the myriad issues
surrounding the safety of wheelchair lifts. Under D.C. law, as noted, courts have “required
expert testimony regarding the applicable standard of care, unless the subject matter is ‘within
the realm of common knowledge and everyday experience.’” Arnold & Porter, 756 A.2d at 433;
see also Briggs, 481 F.3d at 845; Otis Elevator Co. v. Tuerr, 616 A.2d 1254, 1257 (D.C. 1992);
accord Godfrey v. Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009) (noting that “[r]ecently. . . the
D.C. Court of Appeals has required expert testimony in a wider variety of cases, even in those
that might initially seem to fall within jurors’ common knowledge” and “expert testimony is
routinely required in negligence cases . . . which involve issues of safety, security and crime
prevention.”) (internal citations and quotation marks omitted); D.C. Hous. Auth. v. Pinkney, 970
A.2d 854, 864-65 (D.C. 2009) (finding that expert’s testimony in negligence case involving an
elevator accident “was adequate to establish the applicable standard of care”).
In this case, the Court finds that the care and maintenance of a wheelchair lift are not
within the “common knowledge and everyday experience” of jurors, and the plaintiff must set
12
forth expert testimony as to the applicable standard of care. As the defendant indicates, “[h]ow a
wheelchair lift operates, how it might malfunction, how its safety features can be overridden, or
how a rider could be injured thereby are obviously not matters within the realm of common
knowledge.” Def.’s Mem. at 12. The plaintiff should therefore have proffered an expert witness
to establish the standard of care for the defendant’s maintenance and care of the wheelchair lift.
See Davis v. Bud & Papa, Inc., No. 11-cv-1001, 2012 U.S. Dist. LEXIS 110775, at *7-8 (D.D.C.
Aug. 8, 2012) (noting that expert testimony is required when “the subject matter is too technical
for the lay juror”) (quoting Dist. of Columbia v. Hampton, 666 A.2d 30, 36 (D.C. 1995)); see
also Burke v. Air Serv Int’l, Inc., 775 F. Supp. 2d 13, 20 (D.D.C. 2011) (noting that the rule
requiring expert testimony to establish a standard of care “has been applied in a wide variety of
cases, ‘even in those that might initially seem to fall within jurors’ common knowledge’”)
(quoting Godfrey, 559 F.3d at 572).
While the plaintiff proffered two expert witnesses, both of the witnesses are the plaintiff’s
physicians who were named to testify as to the nature of the plaintiff’s injuries and medical
treatment. See ECF Nos. 7-8. No expert witnesses were named to establish a national standard
of care for the maintenance of wheelchair lifts, nor were expert witnesses named who could
testify as to the causal link between the defendant’s alleged negligence and the plaintiff’s
injuries. The plaintiff’s claims therefore cannot survive the defendant’s motion for summary
judgment.
The plaintiff argues unavailingly that no expert testimony is required in this case and that
“it was [the Kennedy Center’s] failure to properly investigate the source of the occasional
malfunctions (incidents of the same substantive character as the incident on or about August 29,
2008) that gives rise to liability.” Pl.’s Opp’n at 6. Without expert testimony, however, the
13
plaintiff cannot allege that the incident giving rise to the lawsuit was “of the same substantive
character” as the prior stalling of the lift. Compare Tuerr, 616 A.2d at 1257-58 (expert
testimony that two elevator accidents “were related” plus defendant’s failure to comply with
government regulations was sufficient to establish negligence),17 with Dist. of Columbia v.
Billingsley, 667 A.2d 837, 842 (D.C. 1995) (Despite earlier sewer system problems, “[s]uch an
inference [that negligent maintenance was the cause of the flooding of the plaintiff’s basement]
would be highly speculative, particularly considering the immediate abatement of the problem,
the length of the intervals between each of the backups, and the testimony about the various
outside sources from which such debris could enter the sewer system. The jury is not permitted
to engage in such mere speculation or conjecture.”). This allegation of “substantive similarity” is
also unpersuasive because the lift on previous occasions had only stopped mid-route. The
plaintiff has offered no evidence that safety arms had lifted on previous occasions, nor that the
plaintiff had ever fallen from the lift.
The plaintiff also argues that the “[d]efendant was duty bound to inspect and investigate
reported malfunctions” without presenting any evidence of the defendant’s failure to do so. Pl.’s
Opp’n at 6. The Kennedy Center did in fact “maintain” and “service” the lift on multiple
occasions “when the need arose.” Def.’s Facts ¶ 15 (citing Fernandez Report at 7, 14); see also
Def.’s Facts ¶ 30 (“Kennedy Center technicians would have to be summoned to repair the lift
while [the p]laintiff remained on it.”) (citing Owen Dep. at 56; Sloan Dep. at 22-23, 29).
17
In Tuerr, the court concluded that “an elevator maintenance contractor owes at least a duty to exercise reasonable
care to those who ride on the elevator.” Tuerr, 616 A.2d at 1259. This holding was premised in part on the elevator
company’s failure to comply with the “particular regulatory or statutory requirement,” namely the company’s failure
to file a prior incident report with the D.C. Department of Consumer and Regulatory Affairs as required by law, that
was “enacted to prevent the type of accident which occurred here,” id. If the particular regulation establishes a
standard of care, then an “unexplained violation of that regulation will render a defendant liable as a matter of law if
a plaintiff can establish that he or she is within the ambit of the statute.” Id. While the plaintiff points to the ADA
as establishing a standard of care, see supra note 16, the plaintiff has not established that the defendant failed to
comply with the ADA.
14
Without expert testimony as to how the Kennedy Center’s efforts failed to meet the applicable
standard of care for maintenance and care of wheelchair lifts, the plaintiff’s claim for negligence
fails.
C. The Plaintiff Still Must Proffer Expert Testimony Even If Res Ipsa Loquitur
Were Applicable.
Finally, the plaintiff cannot sustain her claim and evade the need for expert testimony by
proceeding under a theory of res ipsa loquitur. See Pl.’s Opp’n at 8-9. “[I]t is still the law of the
District of Columbia that the party who seeks to rely on res ipsa loquitur must establish that the
cause of an accident is (1) known, (2) in the defendant’s control, and (3) unlikely to do harm
unless the person in control is negligent.” Londono v. Wash. Metro. Area Transit Auth., 766
F.2d 569, 571 (D.C. Cir. 1985) (quoting Wash. Sheraton Corp. v. Keeter, 239 A.2d 620, 622
(D.C. 1968)) (internal quotation marks omitted); see also Casanova v. Marathon Corp., 570 F.
Supp. 2d 53, 57-58 (D.D.C. 2008) (finding that “[s]ignificantly, the cause of the accident must be
known before we can determine that the causal instrument was within the exclusive control of
the defendant and that the injury was not due to an act of the plaintiff.”) (citation and internal
quotation marks omitted). Thus, res ipsa loquitur “does not come into play in cases where the
cause of the accident is unknown.” Jones v. Safeway Stores, Inc., 314 A.2d 459, 461 (D.C.
1974).18 That is exactly the problem here: the plaintiff maintains that the lift must have
“malfunctioned” in some way to cause her to fall, Pl.’s Opp’n at 7; the defendant argues that the
plaintiff lifted the safety arm and voluntarily propelled her wheelchair over the platform lip to
18
The plaintiff misconstrues Otis Elevator Co. v. Henderson, 514 A.2d 784 (D.C. 1986), when she states that “if the
specific mechanical defect was known, the [res ipsa loquitur] instruction would be unnecessary.” Pl.’s Opp’n at 9.
In that case, “the right elevator door closed on [the plaintiff] and hit her shoulder” but “did not retract immediately.”
Otis Elevator Co., 514 A.2d at 785. The plaintiff’s expert witness in fact testified that “any one or more of a number
of specific mechanical defects could have led to these results” but could not specify the exact failing. Id. There, the
doctrine of res ipsa loquitur applies because the accident can be ascribed to a particular cause (elevator defect, as
described by the expert witness), but not specifically to a particular mechanical defect. Id. at 785. Here, the causes
of the plaintiff’s wheelchair lift accident are unknown.
15
get off the lift and subsequently toppled over, see Def.’s Mem. at 15; Fernandez Report at 12-13;
supra note 10. In fact, the plaintiff explicitly calls attention to this deficiency in ascribing
causation: “It should be stated that the exact nature of the malfunction on or about August 29,
2008 is unknown to either party.” Pl.’s Opp’n at 7; supra note 10. No other available witness
saw the incident and the plaintiff does not remember it. See supra notes 8-10; Owen Dep. at 75,
77; Pl.’s Answers ¶ 6. “[W]hen the facts are complicated,” the D.C. Court of Appeals has said
that it “generally require[s] the plaintiff to produce expert testimony to lay the foundation for
invoking res ipsa loquitur.” Pinkney, 970 A.2d at 868 (citing Quin v. George Wash. Univ., 407
A.2d 580, 583 (D.C. 1979)); see also Scott v. James, 731 A.2d 399, 404 (D.C. 1999) (“[Res ipsa
loquitur] may be invoked only where a lay person can infer negligence as a matter of common
knowledge, or where expert opinion is presented that such accidents do not occur in the absence
of negligence.”) (citations and internal quotation marks omitted).19 For this reason, even res ipsa
loquitur does not absolve the plaintiff of her need to proffer expert testimony to succeed on her
negligence claim under D.C. law.
IV. CONCLUSION
For the reasons stated above, the defendant’s motion for summary judgment is GRANTED.
An appropriate Order shall accompany this Memorandum Opinion.
DATED: October 22, 2012
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
19
The plaintiff’s reliance on McCoy v. Quadrangle Development Corp., 470 A.2d 1256, 1259 (D.C. 1983), for the
proposition that “res ipsa loquitur allows the trier of fact to infer a ‘lack of due care from the mere occurrence of an
accident’” is misplaced. Pl.’s Opp’n at 8 (emphasis in original). In McCoy, the plaintiffs offered evidence
supporting genuine issues of material fact “which should have been submitted to the jury.” McCoy, 470 A.2d at
1259. Here, the plaintiff has offered no such evidence.
16