Because the jury returned a general verdict in favor of the defendants, we do not know whether the jury found that the defendants were not negligent (or that proximate causation was not proven) or that the plaintiff was contributorily negligent. The identical circumstances were present in Sinai v. Polinger Co., 498 A.2d 520, 523 (D.C. 1985), where the plaintiffs contended that the trial judge erred, inter alia, by instructing the jury on affirmative defenses of assumption of risk and contributory negligence. In Sinai, we observed that because a general verdict was returned, "we do not know whether [the jury] even reached the question of contributory negligence or assumption of risk."

The analysis is "heavily fact-based," and the court should grant summary judgment "only if no real dispute exists as to the plaintiff's awareness of the relevant danger." Maalouf v. Swiss Confederation, 208 F. Supp.2d 31, 42 (D.D.C. 2002) (Huvelle, J.) (citing Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C. 1985)); see also White, 780 F.2d at 108 (emphasizing that the defendant must establish that the plaintiff had actual knowledge of the danger to prevail on assumption of risk). While it may look like the doctrines of assumption of risk and contributory negligence overlap, a clear distinction exists between the two.Stager, 494 A.2d at 1311.

Again, it is the jury who shall determine "whether the defendant has presented evidence that the plaintiff's behavior in encountering the risk departed from the standard of care that is to be expected of the reasonable person in the plaintiff's position." Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C. 1985). District of Columbia law precludes Piedmont from recovering for the negligence of FNB if a reasonable jury concludes that the plaintiff assumed the "risk created by the defendant's breach of duty", thus waiving its claims and consenting to the risk.

The two defenses are very similar, "overlapping but not always congruent," because each bars recovery on a different theoretical footing. See Dennis, supra, 928 A.2d at 676; Johnson, supra, 726 A.2d at 175; Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C. 1989); Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C. 1985); Scoggins v. Jude, 419 A.2d 999, 1004 (D.C. 1980). "While assumption of risk focuses on the plaintiff's subjective knowledge of the existence of the risk and his voluntary assumption of it . . . contributory negligence focuses on the objective reasonableness of the plaintiff's conduct." Dennis, supra, 928 A.2d at 677 (internal quotation marks and citations omitted).

We have often held that the two defenses are very similar, overlapping but not always congruent. See Washington Metropolitan Area Transit Authority v. Johnson, 726 A.2d 172, 175 (D.C. 1999); Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C. 1989); Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C. 1985); Scoggins v. Jude, 419 A.2d 999, 1004 (D.C. 1980). While assumption of risk focuses on the plaintiffs subjective knowledge of the existence of the risk and his voluntary assumption of it, see Scoggins, 419 A.2d at 1004, contributory negligence focuses on the "objective reasonableness of the plaintiffs conduct." Sinai 498 A.2d at 524.

"A party asserting the defense of contributory negligence is required to establish, by a preponderance of the evidence, that the plaintiff failed to exercise reasonable care," Poyner v. Loftus, 694 A.2d 69, 71 (D.C. 1997), and a plaintiff is negligent when she "was unreasonable in encountering a known risk or a risk of which [s]he should have been aware," Sinai, 498 A.2d at 525. The phrase "substantial factor" is sometimes used, see, e.g., Sinai v. Polinger Co., 498 A.2d 520, 528 (D.C. 1985), but this modifier may be misleading, as the issue is not one of degree—"[t]he rule is simply that contributory negligence bars a plaintiff's recovery," Wingfield v. Peoples Drug Store, Inc., 379 A.2d 685, 687 (D.C. 1977) (citing Karma Constr. Co. v. King, 296 A.2d 604, 605 (D.C. 1972)). "Ordinarily, questions of negligence and contributory negligence must be decided by the trier of fact."

Burke relies heavily on a pair of cases holding that a plaintiff does not assume a risk of harm where a "new element escalate[s] the [situation], transforming it from one whose risks were more or less known into one whose potentialities [the plaintiff] could in no way have anticipated." Sinai v. Polinger Co., 498 A.2d 520, 524-25 (D.C. 1985); accord Novak, 570 F.3d at 314-15. For example, under this principle, the sudden use of weapons in a fist fight constitutes a "new element" that the participants could not have foreseen.

Assumption of risk is often used interchangeably with contributory negligence. See Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C. 1985). The standard is heavily fact-based, and summary judgment based on assumption of risk should therefore be granted only if no real dispute exists as to the plaintiffs awareness of the relevant danger.

See Mark Keshishian Sons, Inc. v. Washington Square, Inc., 414 A.2d 834, 841 (D.C. 1980). As in Sinai v. Polinger Co., 498 A.2d 520 (D.C. 1985), the trial judge in the instant case provided the jury with general instructions on the standard of care, namely reasonable care under the circumstances. The judge also specifically instructed that "a garage keeper [who] undertakes to repair an automobile . . . has the duty to do the work required with ordinary skill and judgment.

This, however, is not an adequate reason for departing from D.C. law, and indeed, the District of Columbia Court of Appeals has recently criticized the model instruction formulation as defective, precisely because it invites application of a reasonable man standard, not "the subjective standard of true assumption of risk." See Sinai v. Polinger Co., 498 A.2d 520, 526 n. 10; see also id. at 526 n. 8 ("plaintiff's `failure to exercise due care either to discover or to understand the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence'") (quoting Restatement (Second) or Torts § 496D, comment b). See, e.g., Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C. 1985) (citing Restatement (Second) of Torts § 496D); Stager, 494 A.2d at 1311; Scoggins v. Jude, 419 A.2d 999, 1004-05 (D.C. 1980); Morrison v. MacNamara, 407 A.2d 555, 566-67 (D.C. 1979); Martin v. George Hyman Construction Co., 395 A.2d 63, 71-72 (D.C. 1978); see also White v. United States, 780 F.2d 97, 108 (D.C. Cir. 1986); Kanelos v. Kettler, 406 F.2d 951, 955 (D.C. Cir. 1968); Dougherty v. Chas. H. Tompkins Co., 240 F.2d 34, 35-36 (D.C. Cir. 1957).