did not exercise the requisite level of care. Knowing the situation that existed with the door, a reasonably prudent person would have promptly rectified the danger in any number of ways: fixing the door to prevent it from jamming; replacing the door with one that would not jam; setting the door stopper to prevent it from hitting the concrete beam; or placing some device on the beam to absorb the impact of the blow caused by the door. Although Robert Kraft testified (without elaboration) that he saw some workmen at the door, there is no evidence that any of these measures were ever taken. And even had some of these measures been taken, they clearly did not rectify the persistent danger. Defendant did not exercise reasonable care under the circumstances presented and therefore breached the duty of care that it owed to plaintiff Lipnick.
In addition to contesting negligence, the United States raised two affirmative defenses. It first contended that Lipnick was guilty of contributory negligence, which operates as a complete bar to recovery in the District of Columbia. Wingfield v. Peoples Drug Store, 379 A.2d 685, 687 (D.C. 1977). Contributory negligence is "'the failure to act with the prudence demanded of an ordinary reasonable person under like circumstances.'" Jeffries v. Potomac Development Corp., 261 U.S. App. D.C. 355, 822 F.2d 87, 91 (D.C.Cir. 1987) (quoting Stager v. Schneider, 494 A.2d 1307, 1311 (D.C. 1985)). As one ground for contributory negligence, defendant argued that Lipnick should have used another stairway to the rehearsal area when the door was stuck. The evidence presented rebutted this contention. For one thing, the alternative route -- which would have taken plaintiff through the main entrance to the Kennedy Center -- was quite circuitous; it would have required Lipnick (carrying a cumbersome instrument) to walk across the garage, climb a steep embankment, proceed around to the front of the Kennedy Center, and then gain access to the rehearsal area through a different doorway.
In addition to this inconvenience, the alternative route also posed its own risks. Richard White (who had taken this route) stated that the embankment was a "hard climb" when the weather was snowy or otherwise inclement and that the front entrance to the Kennedy Center had several large marble squares that frequently became very slippery when they were wet.
Mr. White and Lawrence Bocaner also related another problem particular to musicians: that, when they carried their instruments over this long route, their hands and fingers often became sore and sensitive and their playing was adversely affected. Finally, it is important to emphasize that, even though Lipnick was using a door that often (and inconsistently) was stuck, that door had been designated as the entrance to be used by NSO employees and those employees had been given security cards to allow them -- and only them -- to enter that door. For all of these reasons, plaintiff did not act unreasonably when he used that door.
Counsel for defendant also asserted in closing argument that contributory negligence existed because plaintiff's injury was "self-inflicted." In essence, the United States contended that Lipnick pulled the door too hard when he attempted to get it open. The evidence presented, however, simply does not support this speculation. Plaintiff Lipnick testified that, after each unsuccessful attempt to open the door, he pulled it "a little harder" each time until it finally opened on the fourth try. He stated that he was not using the maximum force of which he was capable because he was awkwardly positioned, with his right hand stretching for the card reader and his left on the door. He further testified that, although he was "slightly frustrated" with the situation, that reaction was no different than the feeling he had on several previous occasions when the door was stuck. Ms. Gittinger's eyewitness testimony confirms that plaintiff did not use overly-excessive force in opening the door. She stated that, on the morning in question, she was parking her car on the "B" level and saw Lipnick trying to open the door. She exited her car, approached plaintiff, and the two engaged in small talk. On the second attempt that she observed (plaintiff stated that this was his fourth try), plaintiff succeeded in opening the door. Ms. Gittinger persuasively testified that, although plaintiff gave the door a "heave-ho," the force used was not extraordinary. Moreover, she characterized Lipnick's reaction as annoyance rather than anger and observed that Lipnick did not hit the door or engage in any verbal outburst, such as swearing.
No undue force was used.
Ms. Gittinger also testified that, after Mr. Lipnick opened the door, she crossed the threshold, heard a loud noise ("like something dropping on cement") and turned around to see plaintiff covered with blood. Using this testimony as a launching board, counsel for the United States theorized during his closing argument that, after Ms. Gittinger crossed the doorway, the door began to swing back toward plaintiff and he pushed the door back towards the beam, thereby creating the ricochet which caused his injury. There is nothing in the record to support this speculation. Moreover, although Ms. Gittinger stated that she climbed up onto the concrete step and crossed the doorway after plaintiff opened the door, she noted that she was "barely" across the threshold (only two or three feet) when she heard the crashing noise and that only three to four seconds had elapsed between the opening of the door and the sound. That testimony is simply insufficient to draw the inference that defendant asked the Court to make. The Court cannot, and does not, find plaintiff guilty of contributory negligence.
The other defense suggested by the United States was assumption of the risk, which applies "in situations where a plaintiff who is aware of the risk created by the defendant's negligence deliberately chooses to encounter that risk." Morrison, 407 A.2d at 566. Although one may conclude that Lipnick should have known of the risk presented (he certainly knew that the door was sticking and should have known that it might hit the concrete beam), the defense of assumption of the risk does not apply "unless there is evidence that the plaintiff's acquiescence in that risk was voluntary." Id. In an oft-quoted section, see Morrison, 407 A.2d at 567; Sinai, 498 A.2d at 525, the Restatement of Torts explains that
The existence of an alternative course of conduct which would avert the harm . . . does not make the plaintiff's choice voluntary, if the alternative is one which he cannot reasonably be required to accept.