Opinion
Case No. 4:99-CV-18
October 16, 2000
OPINION
This matter is before the Court on Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. The matter stems from Plaintiff's slip and fall on steps at the east end of Constitution Gardens in Washington, D.C. Defendant argues that the Plaintiff has failed to plead a prima facie negligence claim because she failed to plead that the Defendant had actual or constructive knowledge of the step's condition. The Court denies Defendant's Motion.
BACKGROUND
On August 11, 1995, Plaintiff, her then-husband, and her daughter visited Washington, D.C. Between approximately 10:30 a.m. and 11:00 a.m., Plaintiff and her daughter proceeded down the steps at the east end on Constitution Gardens. Plaintiff claims she put her left foot down, it rolled sideways, and she heard a cracking noise but did not fall down. Plaintiff described the step of being "kind of caved in." (Plaintiff dep. pp. 12-13). Plaintiff and her daughter went to the Korean Memorial and reported the incident to David J. Newson, Park Guide. Plaintiff did not ask for medical assistance because she thought she had only suffered a sprain. (Plaintiff dep. pp. 17-18).
All depositions will be cited by the deponent's name and a page number.
From there, Plaintiff and her family had lunch at a museum in the area, and by this time Plaintiff had walked over two miles on her ankle. (Plaintiff dep. pp. 17-18). After lunch, she walked to the Washington Monument, where she asked for assistance from Park Ranger, Linda Bennett. (Plaintiff dep. p. 18). While at the Washington Monument, Plaintiff received an ice pack and went by taxi to George Washington University Hospital, where her foot was x-rayed and casted. (Plaintiff dep. p. 23). Plaintiff's husband subsequently retrieved their rental vehicle and picked up Plaintiff, and they drove back to the site of the accident. Her husband took pictures of the step. (Plaintiff dep. p. 20).
At the time of the accident, Plaintiff wore reading glasses with a minor correction of +1.5. (Plaintiff dep. pp. 29-30). Plaintiff's total out-of-pocket expenses were $300 — $400, and her medical bills totaled $2,000 — $3,000. (Plaintiff dep. p. 31).
In her deposition, Plaintiff stated that she had no knowledge or proof that the National Park Service ("Service") or anyone connected with the Service was aware of the defect in the step prior to her accident. (Plaintiff dep. pp. 33-34).
Various Service employees were deposed regarding this incident. James C. Lindsey, the Investigative Claims Specialist for the National Capital Region National Park Service, stated that his job includes processing claims received for any injuries involving the National Capital Region Service properties. (Lindsey dep. pp. 4-6). Mr. Lindsey stated that he first became aware of Plaintiff's accident when he received her standard Form 95 Tort Claim nearly two years after the accident. (Lindsey dep. pp. 10-11). Mr. Lindsey stated that he reviewed all accident reports as far back as 1990, and he found no prior reports of anyone else being injured on the steps.
(Lindsey dep. pp. 26-32). Mr. Lindsey also stated that his visual investigation of the step showed that it was an open and obvious condition. Mr. Lindsey found no prior notice of the steps in the condition shown in Plaintiff's photographs prior to the report date of Plaintiff's accident. (Lindsey dep. pp. 43-45). Mr. Lindsey did admit, however, that prior to September 1997, he advised William Newman to repair the step. (Lindsey dep. p. 22)
William Newman, Associate Superintendent of Maintenance for National Capital Park Central, testified that he was not aware of anything wrong with the bottom step at the Constitution Gardens. (Newman dep. pp. 10-11). He further testified that other repairs had been done in the area, but no repairs had been done on the step on which Plaintiff fell until February or March 2000. Mr. Newman had visited the site twice in 1998 for other repairs and had never observed anything wrong with the bottom step. (Newman dep. pp. 13-14). Mr. Newman indicated that he could not tell how long the step may have been in the condition shown in the photographs just by looking at it. (Newman dep. p. 32). He first became aware of the condition of the bottom step in February 2000 after receiving a telephone call from Mr. Lindsey. (Newman dep. p. 44) Mr. Newman was not aware of other complaints regarding the steps prior to 1998. (Newman dep. p. 46). Mr. Newman also stated that the step was "unsafe" and repaired to prevent future injuries, and no one was specifically assigned to inspect the steps in the area where Plaintiff fell. (Newman dep. pp. 31, 33).
Guide David Newson testified that he had never seen a step in the condition in Plaintiff's photographs but would have reported it if he had seen a step in that condition. (Newson dep. pp. 10-11). Park Ranger Linda Bennett testified that she had attempted to make a visual inspection after Plaintiff reported the incident and could not see the problem with the step. (Bennett dep. pp. 18-19). Ms. Bennett also testified that she would have reported any hazardous condition she had seen. (Bennett dep. pp. 22-23).
Kevin Awkard, a mason for the Service, testified that in March 2000, he repaired the area after being notified of the defect. Mr. Awkard stated that a piece had sheared off the step but could not say how long it might have existed in that condition. (Awkard dep. pp. 36-37). Mr. Awkard also stated that the step showed signs of weathering. (Awkard dep. pp. 40-42). Another mason for the Service, Michael Proctor, testified that the step had been reset in March 2000 (Proctor dep. p. 7). He further testified that he had no knowledge of the condition of the step prior to doing the repairs, but indicated that from March through June, the mason department checks the Constitution Gardens to see if anything needs repair. (Proctor dep. pp. 16, 21). In addition, Bruce Stocking, who was the Park Ranger Supervisor on the day of the accident, testified that he had not received any notice of a faulty step at the Constitution Gardens before or after the incident. (Stocking dep. p. 18). Various repair and maintenance personnel also testified that they had no prior knowledge of any defect on the steps in question. Various personnel also surmised that the damage to the step was caused by the elements of nature, a fault in the step, a heavy vehicle driving into the step, or a combination of these factors. Many employees further stated that the step appeared to have been damaged for more than one month.
Plaintiff filed her Complaint pursuant to the Federal Tort Clams Act ("Act"), 28 U.S.C. § 2671 et seq. In her Complaint, Plaintiff alleged that the Defendant had a duty to maintain the steps in a "manner that was reasonably safe for foreseeable users such as Plaintiff." Plaintiff also alleged that the Defendant breached its duty by failing to (1) reasonably maintain the steps in a manner that was reasonably safe for foreseeable users, (2) place proper warning that would advise the Plaintiff of the danger of the steps, and (3) maintain the steps in conformance with all applicable codes and laws. Plaintiff further alleged that her injuries were the direct and proximate result of Defendant's alleged negligence.
LEGAL STANDARDS Rule 56(c)
In reviewing a motion for summary judgment, this Court will only consider the narrow question of whether there are "genuine issues as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A motion for summary judgment requires that the Court view the" `inferences to be drawn from the underlying facts . . . in the light most favorable to the party opposing the motion.'" Matsushita Electric Ind Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The opponent, however, has the burden of showing that a "rational trier of fact [could] find for the non-moving party [or] that there is a `genuine issue for trial.'" Matsushita, 475 U.S. at 587. "The mere existence of a scintilla of evidence in support of plaintiffs position[, however,] will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986). District of Columbia Law Applies Under the Act, damages are determined by the law of the state where the tortious act occurred. 28 U.S.C. § 1346(b), 2674; Hatahley v. United States, 351 U.S. 173, 182 (1956); Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995). Here, the alleged acts or failures to act occurred in Washington, D.C., and District of Columbia law applies.
Under District of Columbia law, a plaintiff states a cause of action in negligence by alleging that (1) the defendant breached a duty of care owed to the plaintiff, (2) the defendant's breach of duty was the proximate cause of plaintiff's injuries, and (3) the plaintiff sustained damages as a result thereof. See, e.g., District of Columbia v. Cooper, 483 A.2d 317, 321 (D.C. 1984). To make out a prima facie case of liability predicated upon the existence of a dangerous condition it is necessary to show that the party against whom negligence is claimed had actual notice of the dangerous condition or that the condition had existed for such length of time that, in the exercise of reasonable care, its existence should have become known and corrected. Anderson v. Woodward Lothrop, 244 A.2d 918, 918-19 (D.C. 1968).
To prove constructive notice, a claimant must present evidence that a dangerous condition existed and that the dangerous condition existed for such a duration of time that the defendant should have been aware of it had the defendant exercised reasonable care. See Lunn v. District of Columbia, 734 A.2d 168, 171 (D.C. 1999) (granted directed verdict against claimant). Furthermore, the government is not an insurer of every passerby's safety but is liable only for failure to maintain its streets, highways, and sidewalks in a reasonably safe condition. See Campbell v. District of Columbia, 78 F.2d 725, 728 (D.C. Cir. 1935).
Plaintiff's Pleading
Defendant argues that Plaintiff failed to properly plead constructive or actual notice. Plaintiff filed her Complaint pro se, and the Supreme Court held in Haines v. Kerner, 404 U.S. 519 (1972), that a pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears "`beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id., at 520-521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
In her Complaint, Plaintiff pled the elements of negligence: duty, breach, cause and harm. She did not explicitly plead that Defendant had actual or constructive notice of the damaged step.
This does not mean, however, that "beyond a doubt," Plaintiff can prove "no set of facts in support" of her claim. Defendant's employee admitted that the step was hazardous at the time of Plaintiff's injury. In addition, at least one employee has indicated that the mason department performed inspections from March through June, and the damage appeared to have existed for more than one month. Because Plaintiff fell in August, there is a genuine material issue of fact as to whether Defendant (1) performed its inspection, (2) found damage during its inspection, and, if necessary, (3) subsequently repaired any damage. Therefore, a genuine issue of material fact exists as to whether Defendant had actual or constructive notice of the step's damage.
The Court construed Plaintiff's pro se Complaint liberally as instructed, Haines v 404 U.S. at 520-521; however, it will also grant Plaintiff leave to amend her Complaint to plead actual or constructive notice pursuant to Fed.R.Civ.P. 15(a) ("leave shall be freely given when justice so requires").
CONCLUSION
For the foregoing reasons, the Court denied Defendant's Motion for Summary Judgment and grants Plaintiff leave to amend her Complaint.
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Dkt. No. 39) is DENIED.
IT IS FURTHER ORDERED that Plaintiff is granted leave to amend her Complaint.