Wise v. United States , 145 F. Supp. 3d 53 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES R. WISE, :
:
Plaintiff, :
:
v. : Civil Action No.: 12-01636 (RC)
:
UNITED STATES OF AMERICA :
:
Defendant. :
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. INTRODUCTION
Plaintiff James R. Wise had an accident in a stairwell in the Federal Reserve building in
Washington, D.C on May 18, 2010. Claiming that a faulty stairwell handrail triggered his
accident, Mr. Wise sued the United States for damages under the Federal Tort Claims Act. He
charged the government with negligence, negligence per se, and gross negligence.
This Court concluded a three-day bench trial on March 16, 2015. The Court now makes
its Findings of Fact and Conclusions of Law, as required under Federal Rule of Civil Procedure
52(a)(1). Any facts not expressly stated in the findings below are either immaterial or
undisputed.
The Court finds that Mr. Wise failed to produce expert testimony at trial to prove the
government’s standard of care, as required by the District of Columbia’s tort law. The Court also
finds that Mr. Wise failed to prove the United States had actual or constructive notice of the
faulty handrail. Both the lack of expert testimony and the government’s lack of notice prevent
Mr. Wise from holding the United States liable for his accident, and so the Court enters judgment
in favor of the United States.
II. BACKGROUND
On May 18, 2010, Mr. Wise was employed as an electrician under contract with the
federal government, and he was working at the Federal Reserve building at the intersection of
20th Street NW and C Street NW in Washington, D.C. Mar. 9, 2015 Trial Tr. 10:20–11:5,
124:21–125:6, ECF No. 42; Def.’s Ex. 18, at 1. That day, Mr. Wise had an accident in a stairwell
and injured his neck and back. Mar. 9, 2015 Trial Tr. 13:6–11, 16:2–17:1; Def.’s Ex. 18, at 1. He
received medical care for his injuries that evening at Anne Arundel Medical Center’s emergency
room in Annapolis, Maryland. See Mar. 9, 2015 Trial Tr. 30:6–31:7; Def.’s Exs. 1, 8. In the
months following his accident, he also received medical care from Maryland Primary Care
Physicians, physical therapy from Bayside Physical Therapy and Sports Rehabilitation, and pain
management from the Kahan Center for Pain Management. See Mar. 9, 2015 Trial Tr.
35:17–37:5, 61:11–16; Pl.’s Ex. 3; Def.’s Exs. 2, 14.
Mr. Wise believed that a faulty stairwell handrail came loose and triggered his accident.
Mar. 9, 2015 Trial Tr. 13:6–11. After filing an administrative claim with the Board of Governors
of the Federal Reserve, Mr. Wise sued the United States in this Court under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346, 2674. See Am. Compl. ¶¶ 1–4, ECF No. 13; Answer
¶ 4, ECF No. 8.1 Mr. Wise claims that the government created a dangerous condition by allowing
law enforcement officers to conduct a physical fitness test in the stairwell that weakened the
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Mr. Wise initially named the Federal Reserve Board as the sole defendant in his
Complaint. See Compl. ¶ 6, ECF No. 1. But “the United States is the only proper party
defendant” in an FTCA action. Welsh v. Hagler, 83 F. Supp. 3d 212, 223 (D.D.C. 2015) (quoting
Cureton v. U.S. Marshal Serv., 322 F. Supp. 2d 23, 25 n.4 (D.D.C. 2004)). Mr. Wise therefore
amended his Complaint to name the United States as defendant. See Am. Compl. 1 (naming the
United States as the defendant in the caption).
The Court presumes that when the parties later refer to the Federal Reserve Board as the
defendant in this case, they do so unintentionally. See, e.g., Am. Compl. ¶ 6; Mar. 9, 2015 Trial
Tr. 4:10–18.
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stairwell handrails over time. Mar. 16, 2015 Trial Tr. 56:21–65:8, ECF No. 44. Mr. Wise
therefore contends that the government had a duty to inspect the stairwell handrails at least twice
a year, and that the government was negligent when it failed to do so. Am. Compl. ¶¶ 17–18;
Mar. 16, 2015 Trial Tr. 65:12–17; Pl.’s Proposed Findings of Fact & Conclusions of Law
¶¶ 12–15, ECF No. 38.
The government denies any negligence. It takes the position that Mr. Wise slipped, but
the stairwell handrail was not the cause. Mar. 16, 2015 Trial Tr. 75:20–22. The United States
also contends that its law enforcement officers were not using that particular handrail for their
physical fitness test in the time around Mr. Wise’s accident, and that the government did not
receive notice of any handrail defects before Mr. Wise’s accident Id. at 79:11–80:5; Def.’s
Proposed Findings of Fact & Conclusions of Law 34–36, ECF No. 45. Therefore, the
government argues, Mr. Wise’s negligence claims must be dismissed. Def.’s Proposed Findings
of Fact & Conclusions of Law 35–36.
This Court conducted a three-day bench trial on March 9, March 10, and March 16, 2015.
The Court heard testimony from Mr. Wise, from persons employed at the Federal Reserve
building at the time of Mr. Wise’s accident, and from doctors who evaluated Mr. Wise’s injuries.
The Court finds that the government lacked notice of any problems with the stairwell handrail
before Mr. Wise’s accident, and that Mr. Wise has failed to produce expert testimony required to
establish the appropriate standard of care for installing and subsequently inspecting handrails
under these circumstances. Because both of these things are prerequisites to establishing
negligence liability in this case, the Court finds that the United States is not liable to Mr. Wise
for his accident, for his injuries, or for his subsequent medical care.
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III. STANDARD OF REVIEW
In an action tried without a jury, “the court must find the facts specially and state its
conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). “But the judge need only make brief,
definite, pertinent findings and conclusions upon the contested matters; there is no necessity for
over-elaboration of detail or particularization of facts.” Fed. R. Civ. P. 52(a) advisory
committee’s note to 1946 amendment; accord Caffey v. Togo, No. 97-5092, 1998 WL 230269, at
*2 (D.C. Cir. Feb. 9, 1998); Moore v. Hartman, No. 92-2288, 2015 WL 1812852, at *15 (D.D.C.
Apr. 17, 2015). Therefore, the Court need not address all the evidence presented at trial, and
must simply make findings sufficient to allow the appellate court to conduct a meaningful
review. Caffey, 1998 WL 230269, at *2; Hurwitz v. Hurwitz, 136 F.2d 796, 799 (D.C. Cir. 1943);
Moore, 2015 WL 1812852, at *15.
The Court’s findings and conclusions “may appear in an opinion or a memorandum of
decision filed by the court.” Fed. R. Civ. P. 52(a)(1). On appellate review, findings of fact “must
not be set aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6).
IV. FINDINGS OF FACT
A. Stairwell 6 in the Federal Reserve Building
1. The Federal Reserve building in Washington, D.C. is located at the corner of
C Street NW and 20th Street NW. See Mar. 9, 2015 Trial Tr. 10:25–11:5; Def.’s Ex. 18.
2. The Federal Reserve building has a stairwell, Stairwell 6, which includes a span
of stairs connecting two basement floors, Floors 2-G and 3-G. Mar. 9, 2015 Trial Tr. 126:1–10;
Def.’s Ex. 21.
3. Floor 2-G, also known as the “concourse” level, is the second garage level of the
Federal Reserve building. Mar. 9, 2015 Trial Tr. 126:8–10.
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4. Floor 3-G, also known as the “plant” level, is the third garage level of the Federal
Reserve building. Id. at 126:5–8, 163:25–164:1.
5. Floor 2-G is one floor above Floor 3-G. Id. at 126:5–10.
6. Because Stairwell 6 is the only stairwell that descends to Floor 3-G, Stairwell 6
receives frequent foot traffic. Id. at 134:23–24, 135:4–5; Def.’s Ex. 21.
7. Stairwell 6 contains eight stair steps between Floor G-2 and the midlevel landing
between Floors G-2 and G-3. Mar. 9, 2015 Trial Tr. 15:6; see also id. at 17:6–19:15; Pl.’s Ex.
1-A; Def.’s Ex. 21.
8. On May 18, 2010, Stairwell 6 had a handrail attached to the wall on the left side
of the stairs. Mar. 9, 2015 Trial Tr. 12:24–13:2.
9. Three bolts, located at the top, middle, and bottom of the handrail, attached the
handrail to the wall. See id. at 16:19–21, 21:10–24; Def.’s Ex. 18, at 2, 3.
10. The top and bottom bolts attaching the handrail to the wall were toggle bolts. Mar.
9, 2015 Trial Tr. 21:10–24, 90:1–6.
11. The Federal Reserve’s building operations supervisors and its manager of design
and construction had not received any complaints about, or had any problems with, stairwell
handrails in the building, even though at trial each employee had worked at the Federal Reserve
building for more than ten years. Mar. 9, 2015 Trial Tr. 99:4–18, 106:17–107:18, 112:12–20,
128:23–129:1; see also id. at 93:8–24, 109:4–22, 112:18–20, 117:6–7, 118:3–4 (describing the
employees’ roles and tenures at the Federal Reserve building). Plaintiff has not provided any
evidence of any such prior complaints.2
2
Mr. Wise attempted to establish at trial that the handrail may have come loose and been
repaired in the past. See Mar. 9, 2015 Trial Tr. 77:9–20 (opining, in a statement from Mr. Wise’s
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12. The Federal Reserve building’s stairwell handrails have not been repaired since
they were constructed. Id. at 127:11–24.
B. Stairwell Inspections and Stair Climbing Tests
13. The Federal Reserve building’s law enforcement unit (LEU) had more than 100
members in May 2010. Mar. 9, 2015 Trial Tr. 141:6–16; Mar. 10, 2015 Trial Tr. 9:21–10:3, ECF
No. 43.
14. At the time, the LEU patrolled the stairwells twice daily to look for hazards and
safety concerns. Mar. 9, 2015 Trial Tr. 145:15–25; Mar. 10, 2015 Trial Tr. 9:11–13.
15. For a period of time before May 2010, the LEU conducted “stair climbing tests”
within the stairwells once or twice a year. Mar. 9, 2015 Trial Tr. 115:2–116:1, 127:25–128:16,
143:12–25, 144:10–13, 146:16–21; Mar. 10, 2015 Trial Tr. 13:14–14:1; Def.’s Exs. 22, 23.
16. During each stair climbing test, all the LEU members climbed stairs to reach the
penthouse level of the Federal Reserve Building. Mar. 9, 2015 Trial Tr. 143:22–23, 145:8–11,
146:12–21; Def.’s Exs. 22, 23.
17. Members of the LEU were allowed to use the stairwell handrails while
performing the stair climbing test. Mar. 9, 2015 Trial Tr. 143:22–25, 145:12–14.
supervisor at the time of the accident, that “along the wall you could see where patches were in
the plaster [where] maybe this [the handrail coming loose] might have happened in the past”).
The Court does not find this testimony persuasive. It is contradicted by the testimonies of
Federal Reserve building employees who deny any problems with the handrail for at least ten
years before Mr. Wise’s accident. See id. at 99:4–18, 106:17–107:18, 112:12–20, 128:23–129:1;
see also id. at 93:8–24, 109:4–22, 112:18–20, 117:6–7, 118:3–4 (describing the employees’ roles
and tenures at the Federal Reserve building). And to the extent that pictures of the stairwell Mr.
Wise produced show patches in the plaster, those pictures date from after the accident. See id. at
18:7–9 (noting that Mr. Wise’s pictures, entered into evidence as Plaintiff’s Exhibit 1, A–K,
were taken “after the accident, maybe two days afterwards”). Thus, any wall damage shown in
the pictures could reflect the handrail’s removal and repair after Mr. Wise’s accident, and not
problems with the handrail before his accident.
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18. Although the stair climbing test previously began on Floor 3-G in Stairwell 6, the
test did not start on Floor 3-G in 2010. Mar. 9, 2015 Trial Tr. 139:23–140:9; Mar. 10, 2015 Trial
Tr. 7:20–8:15; Def.’s Ex. 23, at 1.
C. Mr. Wise’s Accident
19. Plaintiff James Robert Wise is a citizen and resident of Maryland. Mar. 9, 2015
Trial Tr. 9:16–17.
20. Mr. Wise is an electrician by training. Id. at 10:14–18.
21. On May 18, 2010, Mr. Wise was employed by Power Services, Inc., as a
subforeman. Id. at 10:20–22.
22. That day, Mr. Wise was working under contract at the Federal Reserve building,
located at the corner of C Street NW and 20th Street NW in Washington, D.C. Id. at 10:25–11:5,
124:24–125:13; Def.’s Ex. 18.
23. Mr. Wise was working a ten-hour shift beginning at 6:00 PM. Mar. 9, 2015 Trial
Tr. 32:10–15.
24. Between 9:54 PM and 9:58 PM on May 18, 2010, Mr. Wise entered Stairwell 6
on Floor 2-G to go down the stairs to Floor 3-G. Id. at 12:14–20, 125:20-22, 126:10–11,
164:3–165:10; Def.’s Ex. 12, at 9.
25. While he was still on the Floor 2-G landing, Mr. Wise placed his left hand on the
handrail attached to the left side of the stairwell. Mar. 9, 2015 Trial Tr. 12:24–13:7, 15:7–17.
26. At the time, Mr. Wise weighed around 240 or 250 pounds. Id. at 13:23–24.
27. Mr. Wise testified that he put about ten percent of his body weight on the handrail
and began going down the stairs. Id. at 13:6–22.
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28. As Mr. Wise took his first step down the stairs, he stumbled and held on to the
handrail to pull himself upright. Id. at 13:10, 15:17–22.
29. At that point, although the handrail was still connected to the wall, the top bolt
was loose. Id. at 15:23–24, 156:12–24.
30. After Mr. Wise stumbled, he slid down the eight stairs to the landing below him.
Id. at 13:10–11, 15:4–6, 16:11–12, 27:24–28:2, 28:7.
31. After his accident, Mr. Wise felt pain in his neck and lower back. Id. at 16:11–13,
28:6–7, 29:10–16, 75:11–12.
32. No one else was in the stairwell during Mr. Wise’s accident. Id. at 44:16–18.
D. Mr. Wise After His Accident
33. After his accident, Mr. Wise walked down some more stairs to go to the electrical
room. Id. at 16:22–23, 28:19–24.
34. Mr. Wise then reported the incident to Bill Bucco, his supervisor at the time, and
Scott Simons, a member of the LEU. Id. at 29:17–24, 74:23–75:4, 141:6–142:15.
35. Mr. Wise did not complete his shift that day; he went to a hospital instead. Id. at
30:6–9, 75:3–4.
36. Mr. Bucco asked Mr. Wise whether Mr. Wise would like a ride to the hospital,
but Mr. Wise declined the offer. Id. at 75:13–17.
37. Mr. Simons asked Mr. Wise whether he would like an ambulance to a hospital,
but Mr. Wise declined that offer as well. Id. at 30:12–20.
E. Mr. Wise’s Medical Care After His Accident
38. Mr. Wise drove his own car to Anne Arundel Medical Center and reported to the
emergency room there. Id. at 30:6–31:7; Def.’s Ex. 1.
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39. When he arrived at the emergency room, Mr. Wise continued to feel pain in his
neck and lower back, as well as down the back of his left leg. Mar. 9, 2015 Trial Tr. 31:13–23.
40. Mr. Wise left the emergency room a couple of hours later and drove home. Id. at
32:2–9.
41. In the months following his accident, Mr. Wise received medical care from
Maryland Primary Care Physicians, physical therapy from Bayside Physical Therapy and Sports
Rehabilitation, and pain management from the Kahan Center for Pain Management. See id. at
35:17–37:5, 61:11–16; Pl.’s Ex. 3; Def.’s Exs. 2, 14.
F. Stairwell 6 After Mr. Wise’s Accident
42. Michael Marx, an engineer employed at the Federal Reserve building, removed
the damaged Stairwell 6 handrail after Mr. Wise’s accident. Mar. 9, 2015 Trial Tr. 56:8–11,
88:15–20; Def.’s Ex. 18.
43. The Federal Reserve building’s lead carpenter Russell Jones reinstalled the
handrail the day after Mr. Wise’s accident, on May 19, 2010. Id. at 19:21–20:13, 95:20–21; Pl.’s
Ex. 1-B.
44. When Mr. Jones reinstalled the handrail in Stairwell 6, he adjusted the top and
bottom toggle bolts’ positions to preserve structural integrity, so that the two toggle bolts met the
wall at some distance away from their prior positions. Mar. 9, 2015 Trial Tr. 95:22–96:3, 98:7–16.
V. CONCLUSIONS OF LAW
The Federal Tort Claims Act (FTCA) is a limited waiver of sovereign immunity that
makes the federal government liable to the same extent as a private individual for certain torts
committed by federal employees acting within the scope of their employment. 28 U.S.C.
§§ 1346, 2674; United States v. Orleans, 425 U.S. 807, 813 (1976). The FTCA provides the
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exclusive remedy “[w]here a plaintiff seeks monetary damages against a federal agency for torts
committed by federal employees.” Lempert v. Rice, 956 F. Supp. 2d 17, 28 (D.D.C. 2013)
(alteration in original) (quoting Jones v. United States, 949 F. Supp. 2d 50, 53 (D.D.C. 2013));
see 28 U.S.C. § 2679(b)(1) (declaring the FTCA remedy “exclusive of any other civil action or
proceeding for money damages”). A court adjudicating FTCA claims applies “the law of the
place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); Girdler v. United States, 923
F. Supp. 2d 168, 186 (D.D.C. 2013) (confirming that the FTCA incorporates state tort law).
Here, the Federal Reserve Board is a federal agency for FTCA purposes. See 28 U.S.C.
§ 2671 (defining “Federal agency” for FTCA purposes to include “the executive departments”
and “independent establishments of the United States”). Mr. Wise’s complaint therefore seeks
relief under the FTCA to obtain monetary damages from the federal government.
Mr. Wise’s Complaint charges the federal government with negligence, negligence per
se, and gross negligence. Am. Compl. ¶¶ 15–48. Because Mr. Wise’s accident occurred in the
District of Columbia, the Court applies the District’s tort law to adjudicate Mr. Wise’s claims.
See Mar. 9, 2015 Trial Tr. 10:25–11:5 (reporting that Mr. Wise was in the Federal Reserve
building, located in Washington, D.C., on the day of his accident); Def.’s Ex. 18, at 1 (same).
The Court addresses each claim in turn.
A. Negligence
To prove negligence under the District of Columbia’s tort law, “a plaintiff must show that
‘(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and
(3) the breach of duty proximately caused damage to the plaintiff.’” Tolu v. Ayodeji, 945 A.2d
596, 601 (D.C. 2008) (quoting Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1098 (D.C.
1994)); accord Sullivan v. AboveNet Commc’ns, Inc., 112 A.3d 347, 354 (D.C. 2015) (quoting
10
Tolu, 945 A.2d at 601); D.C. Hous. Auth. v. Pinckney, 970 A.2d 854, 864 (D.C. 2009) (using the
term “standard of care” instead of “duty of care”). Here, Mr. Wise did not show that the United
States owed a duty of care, and so his negligence case fails.
“In the District of Columbia the applicable standard for determining whether an owner or
occupier of land has exercised the proper level of care to a person lawfully upon his premises is
reasonable care under all of the circumstances.” Night & Day Mgmt., LLC v. Butler, 101 A.3d
1033, 1038 (D.C. 2014); accord D.C. Hous. Auth., 970 A.2d at 866. To prove the standard of
care, however, the District of Columbia’s tort law often requires the plaintiff to produce expert
testimony. See, e.g., Night & Day Mgmt., 101 A.3d at 1038–39. And, when negligence is
predicated on a dangerous condition, the plaintiff must show that the defendant had actual or
constructive notice of the dangerous condition. See Sullivan v. AboveNet Commc’ns, Inc., 112
A.3d 347, 356 (D.C. 2015); Croce v. Hall, 657 A.2d 307, 310–11 (D.C. 1995).
1. Expert Testimony
When the standard of care is “so distinctly related to some science, profession or
occupation as to be beyond the ken of the average lay juror,” the plaintiff must prove the
standard of care with expert testimony. Night & Day Mgmt., LLC v. Butler, 101 A.3d 1033, 1039
(D.C. 2014) (quoting Tolu v. Ayodeji, 945 A.2d 596, 601 (D.C. 2008)). But if the alleged
negligence occurred in a context “within the realm of common knowledge and everyday
experience,” expert testimony is not required. Id. at 1038–39 (quoting Tolu, 945 A.2d at 601).
The District of Columbia Court of Appeals has explained that expert testimony is
required in cases involving “issues of safety, security and crime prevention.” Id. at 1039 (quoting
Varner v. District of Columbia, 891 A.2d 260, 267 (D.C. 2006)). Thus the court has obliged
plaintiffs to produce expert testimony to prove the standard of care for negligence claims
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involving maintenance of a municipality’s dead and leaning tree that could fall on a house, see
Katkish v. District of Columbia, 763 A.2d 703, 706 (D.C. 2000); maintenance of a municipality’s
water main pipe that could rupture, see District of Columbia v. Arnold & Porter, 756 A.2d 427,
433–34 (D.C. 2000); the tightness of handcuffs, see Tillman v. WMATA, 695 A.2d 94, 97 (D.C.
1997); cushioning of the ground around playground monkey bars from which a child could fall,
see Messina v. District of Columbia, 663 A.2d 535, 538–40 (D.C. 1995); and maintenance of
street lights from which light globes could fall, see Rajabi v. Potomac Elec. Power Co., 650 A.2d
1319, 1322–23 (D.C. 1994).
When negligence cases implicate safety issues but the D.C. Court of Appeals holds
expert testimony unnecessary, the cases tend to arise from facts showing an obvious hazard.
These include claims arising from, for instance, “a large, uncovered vent in the wall of a parking
garage” through which a child could fall, see Destefano v. Children’s Nat’l Med. Ctr., 121 A.3d
59, 75 (D.C. 2015); “a gap of six to seven inches between boards” covering a large trench into
which a pedestrian could fall, see Bostic v. Henkels & McCoy, Inc., 748 A.2d 421, 425–26 (D.C.
2000); a hole in a playground slide where a child’s fingers could get caught, see District of
Columbia v. Shannon, 696 A.2d 1359, 1365–66 (D.C. 1997); and an abandoned tank of used
motor oil that could spark a fire, see Jimenez v. Hawk, 683 A.2d 457, 462–63 (D.C. 1996).
Mr. Wise’s case falls into the first category of cases. Because Mr. Wise has alleged two
possible breaches of the standard of care—one relating to how the Stairwell 6 handrail was
installed on the wall, see Mar. 16, 2015 Trial Tr. 58:25–59:2, 59:18–19, and the other relating to
the government’s alleged failure to inspect the handrail, see id. at 61:21–62:5—the Court
addresses the expert testimony requirement for each allegation separately. Mr. Wise should have
produced expert testimony to prove the standard of care for each alleged breach. Because he did
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not produce expert testimony for either allegation, he cannot establish the first element of his
negligence claims, and those claims cannot prevail.
a. Handrail Installation
Mr. Wise contends first that the government breached its duty of care by fastening the
Stairwell 6 handrail to the wall with a toggle bolt and “thin, rusty” metal lathe. See Mar. 16, 2015
Trial Tr. 58:25–59:2, 59:16–19; see also Mar. 9, 2015 Trial Tr. 42:21–23, 132:2–13; Pl.’s Ex. 1-I
(describing and depicting metal lathe and how it, working with a toggle bolt, can connect a
stairwell handrail to wall plaster). Because handrail installation is an issue of safety, it triggers
the presumption that expert testimony is required to establish the standard of care. See Night &
Day Mgmt., LLC v. Butler, 101 A.3d 1033, 1039 (D.C. 2014) (“[E]xpert testimony is required to
establish the standard of care in negligence cases that involve ‘issues of safety . . . .’” (quoting
Varner v. District of Columbia, 891 A.2d 260, 267 (D.C. 2006))).
Determining whether a stairwell handrail was installed correctly is also “distinctly
related” to the construction professions. Destefano v. Children’s Nat’l Med. Ctr., 121 A.3d 59,
75 (D.C. 2015) (“Expert testimony is required . . . where the subject is so distinctly related to
some science, profession, or occupation . . . as to be beyond the ken of the average layperson.”
(quoting Toy v. District of Columbia, 549 A.2d 1, 6 (D.C. 1988)) (internal quotation marks
omitted)); see Mar. 9, 2015 Trial Tr. 24:25–25:19, 80:3–8 (drawing on Mr. Bucco and Mr.
Wise’s construction experience to justify their claims about proper handrail installation). The
standard of care for handrail installations was therefore “beyond the ken of the average
layperson” and a matter for which expert testimony was required. Destefano, 121 A.3d at 75.
Mr. Wise did not satisfy that requirement. To begin with, Mr. Wise did not designate any
expert witnesses to testify on the standard of care for handrail installation. See Am. Joint Pretrial
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Statement 2–3, ECF No. 33. This fact alone is key, for offering expert testimony without
disclosing or designating it as such can result in surprise and prejudice to the other party. See
Heller v. District of Columbia, 801 F.3d 264, 270 (D.C. Cir. 2015) (explaining how one party’s
failure to disclose expert witnesses can unfairly surprise the opposing party); Daniels v. District
of Columbia, 15 F. Supp. 3d 62, 71 (D.D.C. 2014) (“[A] court must determine an appropriate
response to avoid the prejudice and surprise that can result from the offering of expert medical
testimony without the requisite disclosures.”).
The only evidence Mr. Wise produced relating to the standard of care for handrail
installation was lay testimony offered by Mr. Wise and his supervisor Mr. Bucco. Both Mr. Wise
and Mr. Bucco opined briefly that toggle bolts should not have been used to secure the stairwell
handrail. See Mar. 9, 2015 Trial Tr. 21:22–24 (explaining that toggle bolts are used instead “to
support pictures, light bookcases”); id. at 80:6–8 (“[A] toggle bolt type anchor is not the correct
way to install a handrail.”); id. at 83:19–21 (“I don’t think I have ever seen a toggle bolt used for
a handrail.”). But though Mr. Wise and his supervisor Mr. Bucco claim to have the construction
experience and experience with handrail installations to be deemed experts in this case, see id. at
9:23–10:18, 24:25–25:15, 73:2–19, 80:3–5, their testimony does not fulfill the requirements for
expert opinion testimony under District of Columbia law.
The District’s tort law, “at the very least,” requires the expert to specify “what standards
were violated and how they were violated.” Sullivan v. AboveNet Commc’ns, Inc., 112 A.3d 347,
358 (D.C. 2015) (quoting District of Columbia v. Carmichael, 477 A.2d 312, 315 (D.C. 1990)).
“Generalized references” to standards of care are insufficient. Id. (citing Briggs v. WMATA, 481
F.3d 839, 846 (D.C. Cir. 2007)). And an expert may not simply render an opinion “as to what he
or she would do under similar circumstances.” Briggs, 481 F.3d at 846 (quoting Clark v. District
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of Columbia, 708 A.2d 632, 635 (D.C. 1997)). Instead, the expert must “clearly relate the
standard of care to the practices in fact generally followed by other comparable governmental
facilities or to some standard nationally recognized by such units.” Katkish v. District of
Columbia, 763 A.2d 703, 706 (D.C. 2000).
Mr. Wise and Mr. Bucco’s testimony does not meet those requirements. Their testimony
merely declares that toggle bolts are not appropriate for handrail installations, but it does not
offer an appropriate alternative. See Mar. 9, 2015 Trial Tr. 21:22–24, 80:3–8, 83:19–21. And in
opining that toggle bolts are not appropriate, Mr. Wise and Mr. Bucco reference only their prior
experience, not any national standard of care that was violated. See id. at 24:25–25:15 (“I have
worked in staircases before they’ve been finished.”); 83:19–21 (“I can only tell you what I see on
the jobs . . . .”). What is more, their testimony contradicts other witnesses’ testimonies, which
asserted, conversely, that toggle bolts are routinely used to secure stairwell handrails. See id. at
96:12–97:2, 98:17–24.3 This leaves the Court with only general and contested statements about
the standard of care for handrail installation, based solely on Mr. Wise’s and Mr. Bucco’s
experience in construction. Because “considerable speculation” is necessary to decide the
standard of care in these circumstances, Mr. Wise has not met his burden to prove the standard of
care for handrail installation. Tillman v. WMATA, 695 A.2d 94, 97 (D.C. 1997). His negligent
installation claim thus cannot go forward.
3
In addition, Mr. Wise’s and Mr. Bucco’s testimony, given its cursory discussion of the
correct way to secure a handrail to a wall, almost certainly does not satisfy the requirements for
expert opinion testimony under Federal Rule of Evidence 702. See Fed. R. Evid. 702 (requiring
expert testimony to have a basis in “sufficient facts or data,” to be “the product of reliable
principles and methods,” and to result from the expert “reliably appl[ying] the principles and
methods to the facts of the case”).
15
b. Handrail Inspections
As for Mr. Wise’s allegation that the government breached its duty to inspect the
Stairwell 6 handrail, Mr. Wise offered no evidence—expert or otherwise—about the standard of
care for an inspection. Instead, when he alleged that “the standard of care would have been to
inspect [the stairwell handrail] at least twice a year,” he referred only to his counsel’s
“reasonableness as a prudent person.” Mar. 16, 2015 Trial. Tr. 65:12–20. Because he did not
provide any evidence of the standard of care for this claim, Mr. Wise’s failure-to-inspect claim
is, like his negligent installation claim, lost.
As with handrail installation, expert testimony was required to establish the standard of
care for handrail inspections. Given that no problems concerning the Stairwell 6 handrail were
reported to or observed by the Federal Reserve building’s staff in at least the last ten years, the
stairwell handrail was unremarkable and ordinary in the time before Mr. Wise’s accident. See
Mar. 9, 2015 Trial Tr. 99:4–18, 106:17–107:18, 112:12–20, 128:23–129:1 (denying knowledge
of any problems or complaints concerning the stairwell handrail); see also id. at 93:8–24,
109:4–22, 112:18–20, 117:6–7, 118:3–4 (describing the testifying employees’ roles and tenures
at the Federal Reserve building).
Thus, in contrast to cases where the District of Columbia Court of Appeals did not
require expert testimony, the Stairwell 6 handrail here was not such an obvious hazard that
“common sense and everyday experience” would allow the factfinder to infer negligence.
Jimenez v. Hawk, 683 A.2d 457, 462 (D.C. 1996); see, e.g., Destefano v. Nat’l Children’s Med.
Ctr., 121 A.3d 59, 75 (D.C. 2015) (holding expert testimony unnecessary to prove negligence
involving a large, uncovered parking garage vent); Bostic v. Henkels & McCoy, Inc., 748 A.2d
421, 425–26 (D.C. 2000) (same, for gap-ridden boards covering a trench); District of Columbia
16
v. Shannon, 696 A.2d 1359, 1365–66 (D.C. 1997) (same, for a playground slide’s hole); Jimenez,
683 A.2d at 462–63 (same, for abandoned motor oil). Instead, if the handrail was a hazard, it was
at most an inconspicuous one, akin to those for which the D.C. Court of Appeals required expert
testimony to prove the standard of care. See, e.g., Katkish v. District of Columbia, 763 A.2d 703,
706 (D.C. 2000) (requiring expert testimony to prove the standard of care for maintenance of a
dead and leaning tree); District of Columbia v. Arnold & Porter, 756 A.2d 427, 433–34 (D.C.
2000) (same, for a water main pipe); Messina v. District of Columbia, 663 A.2d 535, 538–40
(D.C. 1995) (same, for playground cushioning); Rajabi v. Potomac Elec. Power Co., 650 A.2d
1319, 1322–23 (D.C. 1994) (same, for street lights). Mr. Wise was therefore obligated to put on
expert testimony at trial to establish the standard of care in this case.
Mr. Wise has altogether failed to meet that burden. Mr. Wise offered no evidence at trial,
nor any expert testimony, to establish the standard of care for handrail inspections. See Mar. 16,
2015 Trial. Tr. 65:12–20 (offering only Mr. Wise’s counsel’s “reasonableness as a prudent
person” as the basis for the standard of care). Nor did Mr. Wise establish what, if anything, was
deficient about the LEU’s stairwell inspections, which were performed twice daily at the time of
Mr. Wise’s accident. See Mar. 9, 2015 Trial Tr. 145:15–146:3 (“[The LEU] would walk through
the stairwells to see if there was . . . any type of hazard or safety concern.”); Mar. 10, 2015 Trial
Tr. 9:11–13 (“[E]ach stairwell gets checked in the morning and evening, at a minimum.”). If the
standard of care required more from the government than the LEU’s daily visual inspections
(e.g., application of pressure to the handrail), Mr. Wise has neither specified what else was
required, nor has he produced expert testimony to substantiate his allegations with reference to a
national standard of care. See Katkish v. District of Columbia, 763 A.2d 703, 706 (D.C. 2000);
cf. Mar. 16, 2015 Trial Tr. 65:21–66:19 (offering neither expert testimony for Mr. Wise’s
17
assertion that a prudent person “would at least test those rails,” nor details about what such a test
would look like or the frequency required). Thus Mr. Wise’s failure-to-inspect claim, like his
negligent installation claim, cannot proceed. On both his allegations against the government, Mr.
Wise has “failed to carry his burden for negligence.” See Katkish, 763 A.2d at 706.
2. Notice
The Court turns now to the notice requirement. To establish negligence predicated on the
existence of a dangerous condition, the plaintiff must show that the defendant had actual or
constructive notice of the dangerous condition. Sullivan v. AboveNet Commc’ns, Inc., 112 A.3d
347, 356 (D.C. 2015); Croce v. Hall, 657 A.2d 307, 311 (D.C. 1995). The notice requirement
exists in tandem with the general rule that “the applicable standard for determining whether an
owner or occupier of land has exercised the proper level of care . . . is reasonable care under all
of the circumstances.” See Croce v. Hall, 657 A.2d 307, 310 (D.C. 1995) (articulating first the
general rule, then the more specific rule that, “to recover for injuries resulting from a hazard in a
common area, the plaintiff must show that the [landowner] had actual or constructive notice of a
dangerous condition he failed to correct” (emphasis added)). Here, because Mr. Wise did not
show that the United States had actual or constructive notice of the allegedly defective handrail,
he cannot prove that the United States owed him a duty of care.
a. No Actual Notice
The record here does not show that the United States ever had actual notice of a defective
handrail in Stairwell 6. Stairwell 6 receives frequent foot traffic, and the Federal Reserve
building’s law enforcement unit (LEU) inspects it twice daily. See Mar. 9, 2015 Trial Tr.
134:23–24, 145:14–25; Mar. 10, 2015 Trial Tr. 9:11–13. Given Stairwell 6’s frequent use and
the daily inspections, any problems with the stairwell handrails would have been reported to
18
building employees as soon as they were noticed. See Mar. 9, 2015 Trial Tr. 104:25–105:15,
107:2–18 (explaining, in the statement of the lead carpenter at the time of Mr. Wise’s accident,
that the building services office receives “notices” and “a work order” as soon as a complaint is
filed relating to the building’s electrical structures, carpentry, painting plumbing, temperature,
and the like). Yet, government employees responsible for building maintenance had not received
any complaints about, nor had any problems with, stairwell handrails in the building, despite
each having worked at the Federal Reserve building for more than ten years. See id. at 99:4–18,
106:17–107:18, 112:12–20, 128:23–129:1. Furthermore, both Mr. Wise and his supervisor Mr.
Bucco had used Stairwell 6 regularly, and they did not notice anything amiss with the handrail
until the day of Mr. Wise’s accident. See id. at 53:23–54:1, 76:7–11 (describing how Mr. Wise
and Mr. Bucco had both used Stairwell 6 before); id. at 54:2–4, 77:9–10 (describing how neither
Mr. Wise nor Mr. Bucco had noticed anything amiss with the handrail).
The record reveals, in sum, that the government lacked actual notice of any problems
with the Stairwell 6 handrail. Thus, Mr. Wise’s only hope is to show that the United States had
constructive notice of a defective handrail.
b. No Constructive Notice
Under District of Columbia law, a defendant has constructive notice of a dangerous
condition when “the condition had existed for such length of time that, in the exercise of
reasonable care, its existence should have become known and corrected.” Sullivan v. AboveNet
Commc’ns, Inc., 112 A.3d 347, 356 (D.C. 2015) (quoting Anderson v. Woodward & Lothrop,
244 A.2d 918, 918–19 (D.C. 1968) (per curiam)); accord Wilson v. WMATA, 912 A.2d 1186,
1190 (D.C. 2006). Put another way, to prove constructive notice, “a plaintiff must present
evidence: (1) that a dangerous condition existed, and (2) that the dangerous condition existed for
19
such a duration of time that the [defendant] should have been aware of it if [it] had exercised
reasonable care.” Lynn v. District of Columbia, 734 A.2d 168, 171 (D.C. 1999) (citations
omitted).
Thus, constructive notice “is usually found through the continuance of the condition for
an unreasonable period of time.” Croce v. Hall, 657 A.2d 307, 311–12 (D.C. 1995). Proving the
duration of time that an alleged hazard existed is a “critical” and “important” factor needed to
establish constructive notice. Wilson v. WMATA, 912 A.2d 1186, 1190–91 (D.C. 2006); accord
Mixon v. WMATA, 959 A.2d 55, 60 (D.C. 2008) (citing Wilson). When the plaintiff proves only
that a hazard existed for an undetermined period of time, she has not shown that the defendant
had constructive notice. Wilson, 912 A.2d at 1190 (citing Smith v. Safeway Stores, Inc., 298 A.2d
214, 217 (D.C. 1972)).
Here, Mr. Wise has failed to present evidence of the threshold requirement for
constructive notice: that a dangerous condition existed in the first place. See Lynn v. District of
Columbia, 734 A.2d 168, 171 (D.C. 1999) (“[A] plaintiff must present evidence . . . that a
dangerous condition existed . . . .”). Apart from speculation that the Stairwell 6 handrail may
have had a problem before, see Mar. 9, 2015 Trial Tr. 77:14–20, nothing in the record indicates
that the handrail was loose or defective at any point before the day of Mr. Wise’s accident. By
the year 2010, the LEU’s stair climbing test no longer took place within Stairwell 6. See id. at
144:19–145:7 (indicating that stairwell use for the test ceased around 2010); Mar. 10, 2015 Trial
Tr. 19:1–5, 21:12–19 (indicating that stairwell use for the test ceased in 2007). At that time—and
up to the day of Mr. Wise’s accident—people regularly used Stairwell 6 without reporting any
looseness in the handrail. See Mar. 9, 2015 Trial Tr. 134:23–24 (noting that Stairwell 6 “has a lot
of traffic in it”); id. at 99:4–18, 106:17–107:18, 112:12–20, 128:23–129:1 (detailing how
20
building employees received no reports of problems with the handrails). And, as noted above,
even Mr. Wise and Mr. Bucco did not notice any problems with the Stairwell 6 handrail until the
day of Mr. Wise’s accident. See Mar. 9, 2015 Trial Tr. 54:2–4, 77:9–10. On this record, there is
no evidence that the handrail ever created a dangerous condition for constructive notice.
Even if the Court were to infer that the law enforcement unit (LEU)’s stair climbing test
created the dangerous condition required for constructive notice, Mr. Wise can show only that a
weakened stairwell handrail existed on the day of the accident and possibly for an undetermined
period of time before that date. The record does not establish a clear beginning or end for when
the LEU’s stair climbing test took place in Stairwell 6. See Mar. 9, 2015 Trial Tr. 54:2–4,
77:9–10, 115:2–15, 127:25–128:16, 143:12–25, 144:10–13, 144:19–145:7, 146:16–21; Mar. 10,
2015 Trial Tr. 7:20–8:15, 13:14–14:1, 19:1–5, 21:12–19. Moreover, the record does not establish
a clear beginning or end for when the stair climbing test took place on the actual span of stairs
where Mr. Wise slipped—though, by all accounts it did not include that span of stairs by the year
2010. See Mar. 9, 2015 Trial Tr. 139:23–140:9; Mar. 10, 2015 Trial Tr. 7:20–8:15; Def.’s Ex. 23,
at 1. In short, the record shows only an undetermined period of time during which the
government could be charged with constructive notice of weakened handrails resulting from the
LEU’s stair climbing test. Such an amorphous period of time is insufficient to prove constructive
notice. See Mixon v. WMATA, 959 A.2d 55, 60 (D.C. 2008) (explaining that, when the factfinder
must resort to “sheer guesswork” to determine the length of time the hazard existed, the plaintiff
failed to show enough evidence to permit the factfinder to impute constructive knowledge to the
defendant).
Mr. Wise also cannot claim that constructive notice existed because, if the Federal
Reserve building’s staff had fulfilled their duty of care and inspected the handrail “at least twice
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a year following one of the [stair climbing] tests,” the government would have known that the
handrail was a hazard. See Mar. 16, 2015 Trial Tr. 65:13–14. This line of reasoning overlooks
the first prong of the District of Columbia’s constructive notice formulation, which requires the
plaintiff to prove that a dangerous condition existed in the first place. See Lynn v. District of
Columbia, 734 A.2d 168, 171 (D.C. 1999). Mr. Wise cannot argue that an inspection would have
revealed a problem; doing so invites this Court to engage in the kind of speculation that the
District of Columbia Court of Appeals has discouraged in the constructive notice context. For
instance, that court has held that the failure to prove how long a hazard existed meant that the
factfinder “would have had to engage in sheer guesswork” to determine whether it existed for
long enough to charge the defendant with constructive notice. Mixon v. WMATA, 959 A.2d 55,
60 (D.C. 2008). So too here, if the Court does not even know whether the Stairwell 6 handrail
was defective, it can only guess whether a defective handrail existed for long enough to charge
the government with constructive notice. Without proof of a dangerous condition, the
government cannot be charged with constructive notice, even if it breached an alleged duty to
inspect.
Mr. Wise’s failure to produce expert testimony also destroys his argument here. Even if
the Court could infer constructive notice from a failure to inspect the handrail, Mr. Wise must
prove the government’s duty of care with expert testimony. See supra Part V.A.1.b. Because Mr.
Wise did not, he cannot establish constructive notice by relying on the government’s breach of
its alleged duty to inspect the handrail.
Because Mr. Wise cannot show that the government had actual or constructive notice of a
defective handrail, his negligence claims against the United States cannot prevail. See Sullivan v.
AboveNet Commc’ns, Inc., 112 A.3d 347, 356 (D.C. 2015); Croce v. Hall, 657 A.2d 307, 311
22
(D.C. 1995).4 Both Mr. Wise’s failure to produce expert testimony and his failure to prove notice
defeat his negligence claims.
B. Negligence Per Se
Mr. Wise also seeks relief on a negligence per se theory. See Am. Compl. ¶¶ 25–37; Mar.
16, 2015 Trial Tr. 66:16–17. “To prevail on a negligence per se theory, the plaintiff may, in
certain circumstances and under specified conditions[,] rely on a statute or regulation as proof of
the applicable standard of care.” Night & Day Mgmt., LLC v. Butler, 101 A.3d 1033, 1039 (D.C.
2014) (alteration in original) (quoting Clark v. District of Columbia, 708 A.2d 632, 636 (D.C.
1997)).
Mr. Wise concedes that he has offered no evidence from the District of Columbia Code to
substantiate his claim. Mar. 16, 2015 Trial Tr. 66:17–18. Nor does the record cite any specific
statute or regulation that the government breached. See Mar. 9, 2015 Trial Tr. 83:13–24,
100:24–101:10, 110:22–111:5, 121:9–122:4; cf. id. at 129:2–130:12 (explaining how the Federal
Reserve building was built to conform with the 1961 building code). Without a statute or
regulation to prove a standard of care, Mr. Wise cannot establish the government’s liability for
negligence per se.
C. Gross Negligence
Under D.C. law, “gross negligence” implies “such an extreme deviation from the
ordinary standard of care as to support a finding of wanton, willful and reckless disregard or
conscious indifference for the rights and safety of others.” District of Columbia v. Walker, 689
4
The notice requirement here also means that Mr. Wise cannot recover on a res ipsa
loquitur theory of liability. “[I]n cases in which notice is an essential element of a plaintiff’s
claim, res ispa loquitur is inapplicable because it is inconsistent with the requirement of notice.”
Mixon v. WMATA, 959 A.2d 55, 60 (D.C. 2008). Mr. Wise’s case falls in that category.
23
A.2d 40, 44 (D.C. 1997). But nonetheless, as with any negligence claim, the plaintiff must still
establish “the applicable standard of care,” which is “a base point from which the magnitude of
deviation can be assessed for purposes of the gross negligence inquiry.” Id. at 45. As discussed
above, because he did not produce expert testimony or prove the government’s actual or
constructive notice of the faulty handrail, Mr. Wise has not established the applicable standard of
care. See supra Part V.A. Just as he cannot recover on his plain negligence claim, Mr. Wise
likewise cannot recover on his gross negligence claim.
VI. CONCLUSION
For the foregoing reasons, the Court finds that Defendant United States is not liable to
Plaintiff James R. Wise for negligence, negligence per se, or gross negligence under the Federal
Tort Claims Act. Final judgment will be entered for Defendant.
Dated: November 17, 2015 RUDOLPH CONTRERAS
United States District Judge
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