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May 21, 1991

ELEANOR T. JOHNSON, et al., Plaintiffs,

Louis F. Oberdorfer, United States District Judge.

The opinion of the court was delivered by: OBERDORFER


 This case arises out of the unfortunate death of Devora Johnson, the daughter of plaintiffs Eleanor and Franklin Johnson. On March 20, 1986, the decedent leaped from the platform in the lower level of the Metro Center station into the path of an oncoming Red Line subway car, the train struck her, and she died soon after. Although an Order of January 27, 1988 originally entered summary judgment in favor of defendant Washington Metropolitan Area Transit Authority (WMATA) and dismissed the complaint, the Court of Appeals affirmed in part, reversed in part, and remanded with instruction to consider whether

the results of the drug tests [given the train operator after the accident] are probative on the issue of whether the train operator behaved wantonly or merely negligently, and if so, whether that relevance is not substantially outweighed by the danger of unfair prejudice.

 Johnson v. Washington Metropolitan Area Transit Authority, 280 U.S. App. D.C. 53, 883 F.2d 125, 130 (D.C. Cir. 1989), cert. den., 494 U.S. 1027, 110 S. Ct. 1473, 108 L. Ed. 2d 610 (1990). The Court of Appeals added that "probativeness must be considered in light of the evidence of the operator's false testimony and WMATA's failure to conduct further tests." Id. The parties have fully briefed and argued this and other points. For the reasons stated below, the drug test results are both relevant to whether Dixon acted wantonly and admissible. Accordingly, an accompanying order will deny WMATA's second motion for summary judgment motion and schedule this matter for trial.


 The Johnsons have essentially two claims. First, they contend that WMATA employees had a duty to prevent decedent from standing too close to the edge of the platform because she was acting in a strange and frightened manner. Cf. Weinberg v. Johnson, 518 A.2d 985, 988 (D.C. 1986) (holding WMATA liable for the torts of its employees under the doctrine of respondeat superior). Second, they contend that once decedent was on the tracks, the train operator Keister Dixon could have stopped the train in time to avoid hitting her, but failed to do so because he was impaired by cocaine use at the time.

 The original summary judgment order, as explained by a Memorandum filed February 5, 1988, determined that there was no evidence of anything that should have alerted WMATA employees to Devora Johnson's intentions. The decedent did not tell anyone that she was going to leap in front of an ongoing train. See Memorandum of February 5, 1988 at 17 [hereinafter, "Memorandum"]. Indeed, she did not appear unusually upset, although she did seem rather impatient and had a "very distant look." See id. Most essentially, there was no evidence that she "was leaning into the track area so as to be in danger where she stood before she jumped." Id. Accordingly, the Memorandum concluded that "given the evidence proffered, no reasonable jury could find that defendant was negligent because its employees failed to restrain plaintiffs' decedent from jumping in front of the oncoming train." Id. at 19; see also Celotex Corp. v. Catrett, 477 U.S. 317, 326, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (holding that summary judgment must entered "against a party who fails to make a showing sufficient to establish the existence of any element essential to that party's case, and on which that party will bear the burden of proof at trial"). In the alternative, the Memorandum held that decedent "assumed the risk and was contributorily negligent by jumping into the path of an oncoming train." Memorandum at 19 (citing Sinai v. Polinger Co., 498 A.2d 520, 525 (D.C. 1985) and Restatement (Second) of Torts, § 496A, comment d (1965)). The Court of Appeals did not disturb these findings. See Johnson v. WMATA, 883 F.2d at 128.

 The original summary judgment order likewise determined that there was not enough credible evidence to support defendants' theory that Keister Dixon's violation of his duty of care proximately caused decedent's death. All the witnesses testified that decedent jumped when the train was no more than twenty feet away from her. See id. at 12. At that point, the train was traveling at least 15.65 miles per hour, and at that speed it would have needed at least 157 feet to stop. See id. Accordingly, the Memorandum concluded that "no reasonable jury could fail to conclude that the plaintiffs' decedent proximately caused her own death by jumping in front of the oncoming train when it was no more than 20 feet away from her, and that it would have been impossible for defendant or the operator . . . to stop the train after she jumped into the track and before the train struck her." Id. at 11 - 12 (citations omitted).

 In reaching this conclusion, the Memorandum dismissed the testimony of two witnesses as incredible. Ronald Thompson and Richard Louis Moore testified that the decedent was on the tracks for 5 to 15 seconds before impact. See id. According to plaintiffs' expert, if decedent had been on the tracks for 10.3 seconds or more, a reasonably prudent train operator would have been able to stop the train in time and avoid hitting her. See id. at 13. The Memorandum did not deem this testimony to raise a genuine issue of fact because these time estimates are not only inconsistent with the testimony of all the other witnesses; they are also inconsistent with the distance estimates of Thompson and Moore. See id. at 14. Moore testified that the decedent was only ten to twelve feet from the front of the train when she jumped; Thompson testified that the train was no more than twenty feet away at the time. See id. If, however, the decedent had lain on the tracks for fifteen seconds, the train would have been more than a hundred feet away, and possibly not yet in the station, at the time decedent jumped. See id. Moreover, Thompson acknowledged that his time estimates were less reliable than his estimate of the distance "because of the way in which time seems to 'slow down' when an accident is witnessed." Id. at 14 (citing Thompson Deposition at 25). The Memorandum then concluded that no reasonable jury would believe Thompson's and Moore's time estimates.

 The Court of Appeals observed that "this is not, however, the end of the matter." Id. Because Devora Johnson was trespassing when she jumped onto the tracks, under District of Columbia law she and her successors in interest "may only recover for injuries . . . that were willfully and wantonly inflicted." Memorandum at 11 (quotation and quotation marks omitted); accord Johnson v. WMATA, 883 F.2d at 130. The primary evidence of wanton behavior presented by plaintiffs was that shortly after decedent's death the train operator Keister Dixon tested positive for cocaine, and it was by no means obvious that those results were admissible into evidence.

 The Memorandum briefly discussed the issue. It observed that plaintiffs' expert Dr. Walter Monroe Booker had stated that "impairment could not be determined from any of Mr. Dixon's drug test results." Memorandum at 15 (citing Booker Deposition at 59 - 60, 64). The Memorandum then noted that even if Dixon had been under the influence of drugs at the time, "plaintiffs could still not prevail because no reasonable juror could conclude that any operator could have stopped the train between the time decedent jumped and the time she was struck." Id. (emphasis in original). Finally, the Memorandum concluded that Dixon's "use of drugs is either inadmissible (because of lack of expert testimony indicating whether he was impaired or affected by drugs at the time of the incident) or it would not support a verdict on proximate cause." Id.

 The Court of Appeals found it "ambiguous whether [the Memorandum] based summary judgment on a finding that the tests were inadmissible or primarily on its conclusion that even a sober operator would have been unable to stop the train in time." Johnson v. WMATA, 883 F.2d at 130. The Court of Appeals further noted that in discussing the drug tests the Memorandum had not

considered the possible relevance of two other pieces of evidence: (1) the train operator's presumably false testimony that he had not taken any drugs in the past three months, and (2) WMATA's failure to have more thorough tests performed which would have indicated more about when the operator took the drugs, and whether he was impaired at the time of the accident.

 Id. Accordingly, the Court of Appeals remanded with instructions to consider the admissibility of the drug test results in light of Dixon's presumably false testimony and WMATA's failure to conduct additional tests. See id.


 Before weighing the arguments for and against submitting the drug test results to the jury, it is first necessary to consider what the Johnsons plan to use those drug test results to prove. See Fed. R. Evid. 401 (judging the relevance of evidence according to its tendency to prove "any fact that is of consequence to the determination of the action").


 While the drug test results are not relevant to or probative of the train's location when the decedent fell to the tracks, the Johnsons contend that they are probative of whether Dixon violated his duty of care towards decedent. As the Court of Appeals recognized, the relevant standard is wantonness because decedent was a trespasser at the time of the accident and under District of Columbia law the plaintiffs "may, generally speaking, only recover from landowners for injuries that were willful, wanton, or that resulted from maintenance of a hidden engine of destruction." Holland v. Baltimore & O. R. Co., 431 A.2d 597, 601 (D.C. 1981) (en banc). For the most part, the District of Columbia has adopted a definition of wanton behavior that corresponds to the Restatement's definition of "reckless disregard of safety." See Copeland v. Baltimore & O. R. Co., 416 A.2d 1, 3 & n. 3 (D.C. 1980) (citing Restatement (Second) of Torts § 500, at 587). Under this definition, wanton behavior is more than mere negligence or mistake. It is "characterized by extreme recklessness and utter disregard for the rights of others." Safeway Trails, Inc. v. Schmidt, 225 A.2d 317, 320 (D.C. 1967). Moreover, "it must be foreseeable to a reasonable person that the conduct will result in harm." Copeland v. Baltimore & O. R. Co., 416 A.2d at 4.

 Some jurisdictions, however, define wantonness differently when a landowner injures a trespasser. See Restatement (Second) of Torts § 500, at 586 (scope note). Under this definition, if a landowner is unaware of the presence of the trespasser, the landowner is wanton only if he or she acts with reckless disregard for the safety of others. However, if the landowner is aware of the trespasser's presence, he must exercise ordinary care to avoid injuring the trespasser. See id. In Copeland, the D.C. Court of Appeals discussed this two-pronged definition of wantonness. Specifically, it cited an Illinois Supreme Court decision that "held that a railroad owes an undiscovered trespasser a duty to refrain from willfully or wantonly injuring him/her." Copeland, 416 A.2d at 3 (discussing Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, 148 N.E. 862 (1925)). That same decision also held that "once the presence of a trespasser is known, the railroad must exercise ordinary care not to injure the trespasser." Id. "This standard," the D.C. Court of Appeals observed, "has become generally accepted." Id. (citations omitted). From this passage, it would appear that the D.C. Court of Appeals has adopted, or would likely adopt, this two-pronged approach.

 WMATA does not directly challenge plaintiff's reading of Copeland. Instead, it argues that Copeland was overruled on this point by Holland v. Baltimore & O. R. Co., 431 A.2d 597 (D.C. 1981). Specifically, WMATA points to the statement in Holland that trespassers may only recover for "intentional, wanton or willful injury or maintenance of a hidden engine of destruction." Id. at 599. It is not, however, clear how this language indicates a rejection or revision of the definition of wantonness in Copeland. The quoted language simply indicates that a landowner's behavior must be wanton, whatever wantonness may be. Moreover, Holland does not say it overrules Copeland. Indeed, it neither cites Copeland nor discusses the definition of wantonness. In such circumstances, it would be improper to infer that Holland overruled Copeland. "One of the basic duties of an appellate court is to signify when it is departing from precedent and to provide a legal analysis explaining why it is changing course." United States v. Edmond, 288 U.S. App. D.C. 17, 924 F.2d 261, 267-68 (D.C. Cir. 1991). By assuming that the D.C. Court of Appeals overruled a precedent without explanation, WMATA implicitly assumes that the D.C. Court of Appeals disregarded this basic duty. "Out of respect for the court of appeals," such an assumption cannot be maintained without much more compelling evidence. Id. at 268.

 Nonetheless, this Court is not free to employ Copeland's two-pronged definition of wantonness. Our Court of Appeals clearly stated that if "the drug test results are not admissible, then summary judgment for WMATA would be appropriate due to the lack of evidence that WMATA breached the applicable standard of care." Johnson v. WMATA, 883 F.2d at 130. If the two-pronged definition of wanton behavior were applied, there would be no need to show that Dixon operated the subway car while impaired. It would be enough that he knew that Devora Johnson was on the tracks and failed to exercise ordinary care to avoid her. This Court is not, however, ...

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