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JOHNSON v. WASHINGTON METRO. AREA TRANSIT AUTH.

September 9, 1991

ELEANOR T. JOHNSON, et al., Plaintiffs,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.


Oberdorfer


The opinion of the court was delivered by: LOUIS F. OBERDORFER

On July 1, 1991 defendant Washington Metropolitan Area Transit Authority (WMATA) filed a motion to certify, pursuant to 28 U.S.C. ยง 1292(b), the issue of last clear chance for interlocutory review. This motion stemmed from two possibly inconsistent holdings of the United States Court of Appeals for the District of Columbia. On appeal from an earlier decision in this case, the Court of Appeals held that under District of Columbia law the last clear chance doctrine did not require that defendant negligently place decedent in her position of peril. Johnson v. Washington Metro. Area Transit Auth., 883 F.2d 125, 129 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 1473 (1990). Given the Court of Appeals' holding, this court did not address on remand the issue of defendant's negligence before it discovered or should have discovered the peril in which the plaintiff had placed herself. See Memorandum of May 21, 1991. However, a week after this court filed its order a different panel of the Court of Appeals held that the last clear chance doctrine requires that the negligence of both the decedent and the defendant must have placed the decedent in her position of peril. See Andrews v. Wilkins, No. 90-5225, slip op. at 9 (D.C. Cir. May 31, 1991).

 In his concurrence in Halperin v. Kissinger, 807 F.2d 180, 195 (D.C. Cir. 1986)(Mikva, J., with whom Robinson, J., joined, concurring), Judge Mikva observed that "the intervening law of which Murtha speaks primarily means law deriving from statute or a higher court." He did not, however, categorically rule out departure from the law of the case doctrine because of intervening decisions of the same or similar courts. Instead he determined that,

 even assuming that a court may under certain circumstances depart from the law of the case because of an intervening decision by a different panel of the same court, this case is not one in which to take that step. . . . None of the intervening cases is on all fours with the case sub judice and none offers sufficiently cogent and overarching analysis of the reasonableness issue to control in this case.

 Id. at 195-96.

 In fact, in an earlier opinion that was not cited by Judge Mikva, a panel of the Court of Appeals eschewed the law of the case in favor of a subsequent contradictory holding of a different panel of the same court. See Irons v. Diamond, 670 F.2d 265 (D.C. Cir. 1981). Acknowledging the "fundamental inconsistency" between the two opinions the Court "declined to resolve it through the law of the case doctrine." Id. at 268. The Court observed that "while this path would lead us out of the present thicket, it would do little if anything to cut away the tangled legal underbrush and clarify the controlling law of this circuit." Id.

 Here too the court could simply follow the law of the case; however, this would do little to "clarify" the law. Given the possible conflict on this central issue, there is a high likelihood that it would be appealed and possibly remanded resulting in additional cost and delay. Moreover, following the law of the case would require a full jury trial. Resolution of this issue on interlocutory appeal might potentially conserve judicial resources by allowing the case to be resolved on summary judgment.

 Given the considerable uncertainty as to the applicable standard of the last clear chance doctrine in the District of Columbia and the interests of judicial economy, it is this 9th day of September, 1991, hereby

 ORDERED: that defendant's Motion to Certify is GRANTED, and it is further

 ORDERED: that the May 21, 1991 Order and Memorandum is amended to state:

 The Court of Appeals' decision in Andrews v. Wilkins, No. 90-5225 (D.C. Cir. May 31, 1991), may be inconsistent with the earlier decision of another panel of that Court in this case, Johnson v. Washington Metro. Area Transit Auth., 883 F.2d 125 (D.C. Cir. 1989). Accordingly, the following questions are certified for interlocutory review:

 (1) Does the last clear chance doctrine, as it is applied in the District of Columbia, require plaintiffs to show that defendant's negligence placed the decedent in her position of peril or only that defendant acted negligently in failing to use, with the appropriate standard of care, the ability which he had, after discovering the dangerous position in which decedent had negligently placed herself, to prevent her death? Compare Andrews v. Wilkins, No. 90-5225, slip op. at 9-10 (D.C. Cir. May 31, 1991) with Johnson v. Washington Metro. Area Transit Auth., 883 F.2d 125, 129 (D.C. Cir. 1989); and


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