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LIPNICK v. UNITED STATES

July 19, 1989

LEWIS F. LIPNICK, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant


Joyce Hens Green, United States District Judge.


The opinion of the court was delivered by: GREEN

Plaintiffs Lewis F. Lipnick and Lynn-Jane Lipnick brought this negligence action against defendant United States of America. A two-day trial of this matter was held before the Court on July 10 and 11, 1989. Having carefully considered all of the testimony and evidence presented, as well as the entire record herein, judgment will be entered in favor of plaintiffs.

 I. Background

 In 1964 Congress authorized the creation of the John F. Kennedy Center for the Performing Arts as "the sole national memorial to the late John Fitzgerald Kennedy within the city of Washington [D.C.] and its environs." 20 U.S.C. § 76q. The memorial, more commonly known as the Kennedy Center, was built on lands acquired by the National Capital Planning Commission, id. § 76i, and is administered by a Board of Trustees appointed by the President and located within the Smithsonian Institution. Id. § 76h(a). The National Park Service, a component of the Department of Interior, is responsible for providing "maintenance, security, information, interpretation, janitorial and all other services necessary." Id. § 76l(e).

 In addition to its commemorative function, the Kennedy Center also serves as a center for the presentation of performances in music, opera, drama, dance and poetry. 20 U.S.C. § 76j(a)(1). One group that frequently appears at the Kennedy Center is the National Symphony Orchestra (NSO), a world-renowned classical music orchestra. The NSO has leased space at the Kennedy Center since approximately 1971.

 According to his unrebutted testimony, Mr. Lipnick approached the door and put a black bag and his bassoon on the ground nearby. He then placed his card into the card reader and pulled the door handle. The door did not open. Lipnick inserted his card and pulled two more times, but the door still would not open. On the fourth try, he succeeded in pulling the door free. When the door "cut loose" on that pull, however, Lipnick lost his balance, got his hand tangled in the handle, and was pulled toward the door as it swung to the left. He remembers hearing a loud crash and then feeling pain as he was hit by the door. Lipnick then recalls seeing Marcia Gittinger, the NSO's music librarian, appear and lead him upstairs. He was taken to the hospital, treated for a concussion and released.

 Lipnick and his wife Lynn-Jane Lipnick *fn2" commenced this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq., against the United States of America claiming that the doorway, door and card reader system were "negligently designed, installed, maintained and operated." Complaint para. 10. *fn3" After a period of discovery, the parties participated in a settlement conference before the Magistrate and pretrial conference before the Court. The trial commenced on July 10, 1989.

 II. Discussion

 A district court in an FTCA case is bound to apply the law of the state in which the alleged negligent act or omission occurred. Beattie v. United States, 244 U.S. App. D.C. 70, 756 F.2d 91, 104 (D.C.Cir. 1985). The incident in the instant case took place in the District of Columbia, where the elements of negligence are "a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the interests of the plaintiff, proximately caused by the breach." District of Columbia v. Cooper, 483 A.2d 317, 321 (D.C. 1984). To these considerations the Court now turns.

 A. Duty of Care

 An individual is liable to another only when he owes him some duty of care. Because, however, negligence law "is founded upon the notion of the actor's culpability . . . and the belief that he could have, and should have, taken steps to avoid the potential injury," Munson v. Otis, 396 A.2d 994, 996 (D.C. 1979), a duty of care will only arise with respect to a condition that poses an "unreasonably great risk of harm." Westinghouse Electric Corporation v. Nutt, 407 A.2d 606, 609 (D.C. 1979) (quoting Restatement of Torts § 282 (1965)). Thus, "the legal duty is not to avoid all risk of injury possibly resulting from one's actions (or omissions), but only the unreasonable risk." Munson, 396 A.2d at 996; see also Nutt, 407 A.2d at 609-10 ("liability is imposed only for the creation of an unreasonable danger").

 Plaintiff and all of the witnesses who used the door in question indicated that it frequently did not operate properly during the time leading up to plaintiff's accident. The most serious problem encountered was that the door often stuck in the door frame. When this happened, it became necessary to pull the door harder to attempt to dislodge it from the frame. NSO employees testified at trial that the door could often only be opened with "a good, healthy jerk," "considerable force," or "an extremely strong tug." Robert Kraft noted that the door was sometimes "extremely difficult" to pry open, while Richard White stated that at times the door was "difficult if not impossible" to unstick. White also noted that occasionally he could not exit this fire door from the Kennedy Center into the garage because of the jamming. The condition of the door varied greatly from time to time. Sometimes the door would open easily and one pull would suffice. At other times, it became necessary to make several additional attempts in order to dislodge the door. Weeks or ...


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