Opinion
Civil Action No. 02-0555 (RCL).
March 21, 2005
MEMORANDUM AND ORDER
This is a negligence lawsuit. Plaintiff Helen Ver Standig tripped and fell on a portion of the red carpet that lines the hallways of the Kennedy Center, the defendant. Plaintiff claims that the portion of carpet where she fell was dangerously defective and that the Kennedy Center shirked its duty to repair and maintain the carpet. Before the court is defendant's motion [28] for summary judgment. For the following reasons, defendant's motion [28] for summary judgment is denied.
Only a brief statement of facts is necessary to resolve defendant's summary judgment motion. Plaintiff, now 84 years of age, was a board member of the Whitman-Walker Clinic. On June 29, 2000, the clinic staged a gala fundraising event at the Kennedy Center featuring Patti LaBelle. Plaintiff was a co-chair of the gala and she attended the event. After listening to Patti LaBelle perform, plaintiff, walking arm-in-arm with D.C. City Councilman James Graham, headed from the Opera House to the Rooftop Terrace for a reception. On the way, plaintiff fell and broke her hip.
Plaintiff's negligence claim arises under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2679 et seq. The FTCA permits tort suits against the United States Government for money damages arising from the negligent acts or omissions of its employees acting within the scope of their employment. 28 U.S.C. § 1346(b). There is no dispute that the Kennedy Center, as part of the Smithsonian Institution, is subject to the FTCA liability.See 36 C.F.R. § 530.1.
The Kennedy Center does argue that the Whitman-Walker Clinic is the proper defendant based on the license agreement it signed with the Kennedy Center. However, the license agreement explicitly does not relieve the Kennedy Center from liability for its own negligence. (Def. Mot., Exh. 1, par. 11.)
In FTCA suits, courts apply the tort law of the place where the allegedly tortious act or omission occurred. 28 U.S.C. § 1346(b);see also Nelson v. United States, 838 F.2d 1280, 1286 (D.C. Cir. 1988). The Kennedy Center sits on the eastern bank of the Potomac in Washington, D.C. There is no dispute that District of Columbia tort law governs this case.
To show negligence in the District of Columbia, a plaintiff must show the following elements: (1) that defendant owed plaintiff a duty of care and breached that duty, (2) that the breach proximately caused an injury to plaintiff, and (3) that plaintiff suffered damages as a result. For purposes of the present motion, the Kennedy Center only argues that plaintiff has failed to show the first of these elements.
The owner and operator of property "must act reasonably to maintain its property in a reasonably safe condition in view of all the circumstances including the likelihood of injury, the seriousness of the injury, and the burden of avoiding the risk."Nelson, 838 F.2d at 1285 (citing Smith v. Arbaugh's Restaurant, 469 F.2d 97, 100 (D.C. Cir. 1972). There is apparently no dispute that the Kennedy Center owed this duty with respect to plaintiff. Thus the issue at the heart of this summary judgment motion is whether the Kennedy Center breached its duty by failing to act reasonably.
Defendant first argues that its actions were not unreasonable because it had no notice of any defect over which plaintiff allegedly tripped. To create a jury question on breach "in a negligence case, the plaintiff must produce evidence from which a reasonable juror may conclude that a certain hazard caused the injury and that the defendant had actual or constructive notice of that hazard." Marinopoliski v. Irish, 445 A.2d 339, 340 (D.C. 1982). For its summary judgment motion, defendant presents evidence that it conducted multiple facilities sweeps each day to look for and correct, among many other problems, defects in carpeting. It produced the inspection reports from the day before and the day of plaintiff's fall, each showing no carpet problems. It also produced a work log from the week of plaintiff's fall. That log has an entry that reads "repair trip hazard hos; completed on 6/29/00," the day of plaintiff's fall. Additionally, defendant submit the statements of Harry Imler, a Kennedy Center employee who inspected the carpets immediately after plaintiff's fall. Imler says he found no defects, though he did find a seam in the carpet 11 feet from where plaintiff fell. Defendant contends this evidence demonstrates that it regularly looked for carpet defects and corrected those it found, so that if anything caused plaintiff to fall, it had no actual notice; nor did it have constructive notice.
Plaintiff, in response, presents the court with "Demand Work Orders," which are written orders that describe facilities problems at the Kennedy Center and request remedial measures. There are several orders from 2000 that relate carpet problems, including problems described as trip hazards. A report dated June 29, 2000, the day of plaintiff's fall, reports a "carpet trip hazard, Grand Foyer" as of 2:57 in the afternoon. Then there is the deposition testimony of James Graham, who believes plaintiff fell due to a defect in the carpet that he describes as a fray of several inches. Graham described the carpet defect as follows:
it was tugged where apparently the feel of her shoe had caught it and pulled it, but the separation was much longer than that. It wasn't as if it was just a little part where the heel had caught. It was the carpet had separated for, I don't know how many inches, but it was much longer than that, and it was frayed.
(Def. Mot., Exh. 5, p. 32.). When asked about the existence of a tear or the appearance of a tear some 11 feet away, Graham said that what he saw was not this far-off tear. He believed that the defect he saw was directly behind the plaintiff and was unmistakably what caused her to fall. Id. at 32-33.
Taking the evidence in a light most favorable to plaintiff, as the court must on defendant's motion for summary judgment, plaintiff has raised a fact question concerning whether the Kennedy Center had notice of the carpet defect that caused her to fall. Graham saw a tear, the Kennedy Center reports show a trip hazard existed on the 29th of June, and while the reports also show that the hazard was repaired on the 29th, there is no indication whether the repair took place before or after plaintiff fell. All the evidence can be taken as consistent with plaintiff's position. At the very least, the evidence raises a fact question, and summary judgment for defendants is not appropriate.
Defendant next argues that its actions were not unreasonable because the Kennedy Center only had the duty to conduct reasonable inspections for defects and to repair the defects it found. It argues that its reports and the testimony of its employees establish that its inspection routine was reasonable. Reasonableness and the need for inspections, however, are a fact issues.
The concept of inspection by landowners and occupiers is one that has long been recognized and remains relevant as one of the considerations in determining whether a landowner or occupier exercises reasonable care under the circumstances. A landowner clearly must have some awareness of the condition of the property when asking people to enter onto it. To discover potential perils may require the landowner to inspect the property in some manner at some time, and the nature of the inspection is broad and expansive depending on the circumstances.
Whether an inspection is required in a particular case, and if so, the nature of the inspection, are questions of fact.Sandoe v. Lefta Assocs., 559 A.2d 732, 743 (D.C. 1988). Plaintiff's evidence and arguments raise questions as to whether defendant's inspections were conducted diligently and whether defendant overlooked a defect that caused her to fall. It is for the factfinder to decide whether defendant's inspections were reasonable; summary judgment is not appropriate. Defendant's reliance on Polcari v. United States, No. 88-2374, 1991 WL 229892 (D.D.C. Oct. 23, 1991) is not helpful, because while the factual scenario presented in that decision is quite similar, that decision was not issued in response to a motion for summary judgment, but after a trial on the merits in which the factfinder found the defendant's inspections reasonable.
For all these reasons, the court denies summary judgment to the defendant Kennedy Center.
SO ORDERED.