AMY BERMAN JACKSON, District Judge.
Plaintiff Patricia A. Bell has filed a series of related and overlapping complaints, in multiple courts, all arising out of the renovation of her home in 2009. In what began as a simple negligence action, she is now suing her contractor, Elite Builders and HVAC, Inc., and several of its employees, agents, and officers, for negligence, breach of fiduciary duty, fraud, constructive/equitable trust, breach of an implied duty of good workmanship, breach of contract, and improper licensure. Defendants' dispositive motion on the single claim that comprised the original complaint is currently before the Court.
Plaintiff alleges that when the workers in her house covered the kitchen floor with a drop cloth, they negligently created a "dangerous and defective condition" that caused her to slip and fall and sustain "severe, painful, and permanent injuries." Compl. [Dkt. #1] ¶¶ 10-11. Defendants have moved for summary judgment on the personal injury claim, asserting the defenses of contributory negligence and assumption of the risk. After considering the parties' pleadings, the Court finds that plaintiff is barred from recovering for negligence as a matter of law because she assumed the risk. Therefore, the Court will grant defendants' motion for summary judgment on that count.
In December of 2008, plaintiff Patricia A. Bell hired defendants to complete renovations of both the exterior and interior of her home, including the kitchen. Compl. ¶ 3.
On the morning of May 2, 2009—about two and a half months into the renovation—plaintiff heard a noise in her backyard from her second floor bedroom. Pl.'s Dep. at 22-23. To determine the source of the noise, she went down the stairs, turned on the lights, and walked through the kitchen to look out the sliding glass door into her backyard. Pl.'s Dep. at 23. Plaintiff observed several possums in the backyard and decided to retrieve her camera from the living room to take photographs of them. Id. She made the trip, returned to the kitchen, and opened the sliding glass door. Id. She then leaned out the door to photograph the animals while standing on the drop cloth that covered the floor. Id.
Plaintiff states that while she was leaning out of the door, her "left ankle got twisted up in [a] drop cloth, and [she] fell out the back door onto [her] patio." Id. at 24. She alleges that as a result of this fall she suffered "severe, painful, and permanent injuries." Compl. ¶ 11. It is not disputed that defendants had placed the drop cloths in plaintiff's kitchen several days before her fall, and that plaintiff knew they were there. Pl.'s Dep. at 25-26; see also Pl.'s Aff., Ex. to Pl.'s Supplemental
The dispute between the plaintiff and her contractor has spawned a succession of legal actions that address not only the drop cloths but the financial relationship between the parties:
On May 1, 2013, the Court indicated that it had the fully briefed summary judgment motion on the negligence count under advisement, and it permitted the parties to submit supplemental briefing on the assumption of risk issue. See Pl.'s Supplemental Opp. to Defs.' Mot. for Summ. J. ("Pl.'s Supplemental Opp.") [Dkt. #39]; Defs.' Surreply to Pl.'s Supplemental Opp. to Mot. for Summ. J. [Dkt. #40]. The motion is now before the Court for decision.
Summary judgment is appropriate "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). The party seeking summary judgment bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548 (internal quotation marks omitted). The existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" only if a reasonable fact-finder could find for the non-moving party; a fact is only "material" if it is capable of affecting the outcome of the litigation. Id. at 248, 106 S.Ct. 2505; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir.1987). In assessing a party's motion, the court must "view the facts and draw reasonable inferences `in the light most favorable to the party opposing the summary judgment motion.'" Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).
In their motion for summary judgment, defendants contend that plaintiff is completely barred from recovering on her negligence claim because she was contributorily negligent and because she assumed the risk. Defs.' Mot. ¶¶ 2-3. Since the Court finds that plaintiff's assumption of risk vitiates her negligence claim, the Court will grant summary judgment for the defendants without reaching the contributory negligence issue.
In the District of Columbia, assumption of the risk bars recovery in a negligence action. White v. United States, 780 F.2d 97, 108 n. 36 (D.C.Cir.1986); see also Phillips v. Fujitec America, Inc., 3 A.3d 324, 328 (D.C.2010) ("[A]ssumption of the risk ... bars recovery where a plaintiff voluntarily encounters a known risk.");
Regardless of whether the risk involved is alleged to have been reasonable or unreasonable, the elements of the assumption of risk defense are the same: (1) the plaintiff must have knowledge of the danger; and (2) the plaintiff must voluntarily expose herself to that known danger. See Morrison v. MacNamara, 407 A.2d 555, 566 (D.C.1979). The Court finds plaintiff is barred from recovering on her negligence claim because she knew of the danger posed by the drop cloths, and she voluntarily exposed herself to it.
To establish the first element, the court must find that the plaintiff had a "full comprehension and appreciation of the danger"; a showing that the plaintiff was simply aware of the risk is insufficient. Id. at 566-67. This knowledge requirement involves a fact-sensitive analysis that takes into account a plaintiff's age, intelligence, and experience, and in some cases, it is a question to be decided by the jury. See Butler v. Frazee, 211 U.S. 459, 466, 29 S.Ct. 136, 53 L.Ed. 281 (1908); see also Morrison, 407 A.2d at 568.
Butler, 211 U.S. at 467, 29 S.Ct. 136; see also Prosser and Keeton on the Law of Torts, § 55 at 310 (2d ed. 1955) ("[T]here are certain risks which any one of adult age must be taken to appreciate: the danger of slipping on ice, of falling through unguarded openings ... [and] where it is clear that any person of normal intelligence in [the plaintiff's] position must have understood the danger, the issue [of plaintiff's knowledge and appreciation of the danger] must be decided by the court.").
Here, plaintiff had a subjective appreciation of the danger: the drop cloths had been in her kitchen for several days leading up to her fall, and she appreciated that they could be dangerous because she has characterized them as "tripping hazards." See Pl.'s Dep. at 25-26; Pl.'s Answers to Def.'s Interrogs., Ex. 2 to Defs.' Mot. [Dkt. # 21-1] at No. 6. In an attempt to avoid this conclusion, plaintiff characterizes herself as an "unlearned and unwary kitchen user." Pl.'s Opp. at 3. She also alleges that "she was not a safety engineer" and "did not appreciate that she was exposing her[self] to any forseeable risk of injury such as would be apparent to a safety engineer." Pl.'s Supplemental Opp. at 8. But whether plaintiff was adept at
The cases that plaintiff cites in her supplemental opposition memorandum to support her argument that she did not have the requisite knowledge are inapposite. In Morrison, the court stated that in the context of medical malpractice "save for exceptional circumstances, a patient cannot assume the risk of negligent treatment" because of "the superior knowledge of the doctor with his expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers...." 407 A.2d at 567-68. The court's statement in Morrison does not apply to this context because unlike medical treatment, the danger of slipping on a drop cloth is obvious to common understanding and does not require "superior knowledge."
In Harris v. Plummer, the plaintiff was a passenger in an automobile that had collided with another automobile on an icy day. 190 A.2d 98, 99 (D.C.1963). No more than five minutes after the first collision—while both cars were stopped—a third car struck plaintiff's car from behind. Id. at 99-100. The court held that the assumption of the risk defense was not available in that circumstance because there was no evidence that the plaintiff deliberately incurred a known danger simply by sitting in the car while the driver inspected the vehicle for damage after the first collision. Id. at 100. But here, plaintiff deliberately incurred a known danger: she saw the drop cloth on the ground, she understood the danger of slipping on it, she decided to traverse the kitchen quickly twice anyway, and she leaned out of the sliding glass door without any sort of firm purchase for her feet.
The case is also distinguishable from cases cited by the plaintiff in which the risks had been hidden from the claimants involved. In Butera v. District of Columbia, a decedent's estate brought a wrongful death action on behalf of an individual who had been beaten to death while serving as an undercover operative for the Metropolitan Police Department. 83 F.Supp.2d 25, 27 (D.D.C.1999), aff'd in part, rev'd in part, 235 F.3d 637, 641 (D.C.Cir.2001). The court denied the defendants' motion for summary judgment on assumption of risk grounds because the officers had withheld critical information from the decedent about the criminal activity in the neighborhood where he was killed, and without that information, the decedent did not have the requisite knowledge about the risk. Id. at 37-38. Similarly, in Weil v. Seltzer, a patient had been led to believe he had been placed on a regimen of antihistamines, when in fact, the doctor had been prescribing steroids. 873 F.2d 1453, 1456 (D.C.Cir.1989). The patient died of the long-term effects of steroid use, and his estate sued the doctor for wrongful death.
This case is unlike Butera or Weil because plaintiff is not asserting that defendants had superior information that they failed to pass along to her. Rather, plaintiff has acknowledged that she saw the drop cloth on the uncarpeted surface. As a person "of full age, intelligence, and adequate experience" she must be charged with the knowledge that walking on what she herself describes as "a wrinkled drop cloth lying on a polished slippery wood floor," Pl.'s Opp. at 3, could cause her to slip and fall.
To establish the second element, the court must find that the plaintiff voluntarily encountered the risk. Morrison, 407 A.2d at 566-67. In this analysis, a court should look to whether the plaintiff's consent to encounter the risk was "given freely and without any element of coercion attributable to the defendant." Martin v. George Hyman Constr. Co., 395 A.2d 63, 72 (D.C.1978). Where a defendant leaves a plaintiff with no reasonable alternative but to encounter the risk, a plaintiff does not voluntarily assume the risk. See Dougherty v. Chas. H. Tompkins Co., 240 F.2d 34, 36 (D.C.Cir.1957) (plaintiff who had the option of using an unsafe sidewalk or staying home had not assumed the risk given the city's statutory duty to reasonably maintain sidewalks); Kanelos v. Kettler, 406 F.2d 951, 955-56 (D.C.Cir.1968) (a tenant did not voluntarily encounter the danger posed by a defective bathroom door sill where the landlord knew about the defect, refused to correct it, and the tenant's only choices were to encounter the defect or forego the use of the bathroom); see also Morrison, 407 A.2d at 567 ("A defendant who by his own wrong has compelled the plaintiff to choose between two evils cannot be permitted to say that the plaintiff is barred from recovery because he has made the choice."), citing Restatement (Second) of Torts § 496E (1965).
Here, plaintiff made the conscious decision to walk through the job site in her kitchen not once, but twice. She attempts to characterize her encounter with the drop cloths as involuntary because "any access to her back yard ... was through a glass door in her kitchen." Pl.'s Opp. at 2; see also Pl.'s Supplemental Opp. at 7. But plaintiff directly undercuts this assertion when she elaborates: "If a fire broke out that prevented occupants from access to the front staircase, the only means of evacuating the home was through the rear glass door in the kitchen." Pl.'s Supplemental Opp. at 7 (emphasis added). In any event, in her deposition, she acknowledged that she could enter the backyard by walking outside around the side of her home. Pl.'s Dep. at 40 (stating that she accessed the front of her home and the public street from her backyard after she fell). This is certainly a reasonable alternative to walking through a kitchen that is under renovation. Therefore, unlike in Dougherty and Kanelos, plaintiff was not presented with a coercive choice or choice of evils that negated the voluntariness of the choice. Further, plaintiff could have moved the drop cloth aside when she returned to the doors to take the photographs.
The remaining cases in plaintiff's supplemental opposition memorandum do not change the outcome here either. In Novak v. Capital Mgmt. & Dev. Corp., the defendant — a night club owner — argued that the district court should have granted its summary judgment motion on the plaintiff's negligence claim because the plaintiff assumed the risk of injury by knowingly and voluntarily becoming part of an ongoing fight after assailants attacked one of his friends. 570 F.3d 305, 314 (D.C.Cir.2009). The D.C. Circuit rejected that argument on the grounds that a reasonable jury could have found that the plaintiff did not voluntarily enter the fight: the plaintiff was standing close to his friend when the fight began, and he stated that he "became part of the melee involuntarily, as it developed around [him]." Id. (alteration in original). Unlike the fight in Novak, the danger of the slipping on drop cloths did not develop around plaintiff. She was aware of the danger and chose to encounter it.
In Martin, an ironworker who was injured while working at a construction site brought a negligence suit against the general contractor in charge of the project on the grounds that the general contractor breached the statutory duty to provide reasonably safe working conditions under D.C.Code 1973 § 36-438(a) and breached the specific duty of care imposed by sections 11-21090 and 11-21091(f) of the District of Columbia Safety Standards, Rules and Regulations Construction. 395 A.2d at 65. The court held that "a wage earner's claim under the statutory safety scheme is not barred unless he incurred the injury in willful, wanton, or reckless disregard for his safety, [and] his determination to encounter a situation of risk cannot be said to be voluntary unless his determination was, in light of available alternatives, willful, wanton, or reckless." Id. at 72. This standard does not apply here because plaintiff has not alleged that defendants breached a statutory duty owed to her. See Compl. ¶¶ 5-12 (alleging that defendants owed her a duty to perform the construction work in a "safe, reliable and workmanlike manner" but never alleging that this duty was imposed by statute); see also Proposed 2d Am. Compl. ¶¶ 20-28 (failing to allege that the duty that defendants allegedly owed to plaintiff was imposed by statute).
Accordingly, the Court will grant defendants' motion for summary judgment on plaintiff's personal injury negligence claim. A separate order will issue.
