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December 19, 1991

ELEANOR T. JOHNSON, et al., Plaintiffs,


Plaintiffs' decedent died when she jumped from a subway platform into the path of an approaching WMATA train which struck and killed her. On the theory that undisputed evidence established that the train was so close to decedent when she jumped that no effort by an operator could have avoided the fatal strike, this court granted defendant's motion for summary judgment despite evidence that the operator had tested positive for drug use. A panel of the Court of Appeals reversed that judgment and remanded the case. Johnson v. Washington Metro. Area Transit Auth., 280 App. D.C. 53, 883 F.2d 125 (D.C. Cir. 1989) (Mikva, R.B. Ginsburg and Hogan, JJ.), cert. denied, 494 U.S. 1027, 110 S. Ct. 1473, 108 L. Ed. 2d 610 (1990). The panel ruled, inter alia, that it was not necessary for a plaintiff to prove that defendant "had been negligent before he discovered or should have discovered the dangerous position in which the plaintiff negligently put herself." Id. at 129. Instead, plaintiff must only show that defendant "failed to use, with the appropriate standard of care, the ability which he then had to prevent injury to the plaintiff." Id. The panel invoked as its authority the District of Columbia Court of Appeals' decision in Byrd v. Hawkins, 404 A.2d 941 (D.C. 1979). *fn1" The panel determined, however, that it was the responsibility of the trial court, after an evidentiary hearing, to evaluate certain inconsistent testimony with respect to the position of the train when the decedent fell and that the grant of summary judgment had not included consideration of aspects of the testimony favorable to plaintiff. Having ruled that summary judgment was premature because there was a genuine issue of material fact as to whether the operator could have stopped the train in time, the panel directed attention to further genuine issues that would arise if the trial court resolved those issues by finding that the accident could have been avoided, including the "knotty question" of whether drug tests of the train operator were admissible, and whether statements of witnesses not employees of WMATA were admissible.

 Pursuant to the remand order and the Court of Appeals' suggestions, this court authorized additional discovery and received briefs on defendant's renewed motion for summary judgment. A 33-page Memorandum filed May 22, 1991 by this court provided for orders which would "deny defendant's second motion for summary judgment and schedule this matter for trial." Id. at 2. An accompanying Order formally denied the renewed summary judgment motion and scheduled a status conference with a view to establishing a pretrial and trial schedule.

 Meanwhile, on May 31, 1991, a Court of Appeals' panel filed its opinion in Andrews v. Wilkins, 290 App. D.C. 95, 934 F.2d 1267 (D.C. Cir. 1991) (Mikva, D.H. Ginsburg and Sentelle, JJ.). In that case, police approached decedent and advised him that he was being charged with urinating in public. Decedent fled and in so doing leapt into the Washington Channel and began swimming to the opposite shore. Decedent began to tire and appeared to be in danger of drowning. Defendants engaged in several unsuccessful attempts to rescue decedent. Discovering that decedent had become unconscious, a civilian in the boat prepared to enter the water to effect a rescue. The police directed the civilian not to enter the water, but instead to come to the shore to pick up a police officer. In the interim, decedent drowned; his body was recovered approximately one-half hour later. An autopsy revealed the presence of drugs and alcohol in decedent's bloodstream at the time of his death. In one paragraph and without citing Johnson, that panel rejected plaintiffs' common law tort claim on the authority of the federal Court of Appeals' post-reorganization ruling in Queen v. Washington Metro. Area Transit Auth., 842 F.2d 476, 481 (D.C. Cir. 1988). *fn2" It granted defendant's motion for summary judgment on the theory that a plaintiff who negligently placed himself in peril may prevail only by establishing that his peril was "caused by negligence of both plaintiff and defendant." Andrews, 934 F.2d at 1272. The Court found the Andrews' "decedent was in a position of danger by virtue only of his own actions." Ibid.

 On June 6, 1991, defendant moved for reconsideration of the May 22 Order, apparently unaware of the Andrews decision. A June 13, 1991 Order denied that motion without awaiting a response from plaintiff because the motion "presented no new legal authority and failed to point to any material evidence in the record not previously considered." Thereafter, instead of filing a further motion for reconsideration, defendant filed a "Motion to Certify Issue of Last Clear Chance under 29 U.S.C. § 1292(b)" for the purpose of obtaining immediate review of the May 22, 1991 Order concerning the last clear chance doctrine. Defendant's motion pointed to "the decision in Andrews v. Wilkins in which the Circuit Court held an essential element of the last clear chance doctrine under District of Columbia law is that plaintiff be placed in a position of danger by negligence of both plaintiff and [defendant]." Motion at 1 (citation omitted). Defendant argued that "this is contrary to the holding of Johnson v. WMATA which held that antecedent negligence on the part of the defendant was not required." Id. (citation omitted).

 A September 10, 1991 Memorandum and Order of this Court addressed the issue of law of the case, granted WMATA's motion to certify and amended, but in effect ratified, the May 21, 1991 Memorandum and Order which had denied WMATA's renewed motion for summary judgment. The September 10 Memorandum in effect reaffirmed the May 21 Order which denied defendant's motion for summary judgment, noting, however, in support of certification that resolution of the apparent conflict between the panels would well serve the interest of justice by possibly avoiding the time and cost and, for the decedent's plaintiffs, trauma, of reviewing before a jury the details of the her tragic death.

 Armed with this certification, WMATA petitioned the Court of Appeals for leave to file an interlocutory appeal. On November 4, 1991, a third Court of Appeals panel (Edwards, Silberman and Williams, JJ.) denied the petition for interlocutory appeal stating that

Although the court recognizes the possibility of an intra-circuit split on the question presented in this case, we cannot address this matter absent a district court order resolving the questions certified to this court pursuant to 28 U.S.C. § 1292(b). . . . Should the district court enter a proper order, this court may then consider the merits of this matter.

 Johnson v. Washington Metro. Area Transit Auth., No. 91-8035, Order (D.C. Cir. Nov. 4, 1991).

 In response to this suggestion, this court invited counsel for the parties to submit proposed orders. Defendant WMATA filed a proposed Memorandum and Order which substantially followed the contours of the September 10 Memorandum. Recognizing that, unlike appellate courts, district courts are required to follow the law of the case enunciated by a Court of Appeals panel, defendant's proposed order essentially asked the Court of Appeals to revisit its earlier holding in Johnson in light of Andrews. Plaintiffs countered with a proposed order that followed Johnson as the law of the case, implicitly challenging the district court's authority to certify a question to the Court of Appeals that has already been directly decided by a panel of that Court in an earlier proceeding of the same case.

 The apparent disagreement between the Johnson panel's original remand order and the May 21 Order entered in compliance therewith on the one hand and the last clear chance doctrine as enunciated in Andrews frames "a controlling question of law as to which there is a substantial ground for difference of opinion." The May 21 Order, even as modified on September 10, denied instead of granting summary judgment; it is not appealable. However, interlocutory resolution of this controlling question "may materially advance the ultimate termination of this litigation." 28 U.S.C. § 1292(b). Therefore, an accompanying Order recertifies the question resolved in the earlier orders for such interlocutory consideration by the Court of Appeals as it may wish to give.


 The Court of Appeals' November 4, 1991 Order declining defendant's prayer for certification apparently invites, if it does not require, a further exposition of the rationale of the May 21 Order denying defendant's motion for summary judgment as reiterated on September 10, and in the order accompanying this Memorandum. Briefly, those orders are based on the trial court's opinion that the Johnson opinion correctly interpreted the District of Columbia precedents. Furthermore, even if the Andrews decision were the more nearly correct statement of governing District of Columbia law, this trial court would be bound by the law of the case as stated by the Johnson panel unless and until the entire Court of Appeals had at least informally approved a departure from that mandate. See Irons v. Diamond, 216 App. D.C. 107, 670 F.2d 265, 268, 214 U.S.P.Q. (BNA) 81 n.11 (D.C. Cir. 1983).


 The District of Columbia is a contributory negligence jurisdiction. Therefore, decedent's negligence in jumping onto the tracks would bar recovery absent a showing that the train operator had the last clear chance to avoid striking her. There is District of Columbia precedent to the effect that to prevail despite contributory negligence by virtue of the last clear chance doctrine plaintiff must establish:

(1) that plaintiff was in a position of danger caused by negligence of both plaintiff and defendant; (2) that plaintiff was oblivious of the danger or unable to extricate himself from the position of danger; (3) that defendant was aware or by the exercise of reasonable care should have been aware of plaintiff's danger and obliviousness or inability to extricate himself from the danger; and (4) that defendant with the means available to him was by the exercise of reasonable care able to avoid striking plaintiff after he became aware of the latter's danger and inability to extricate himself from danger, and failed to do so.

 Wash. Met. Area Transit Auth. v. Jones, 443 A.2d 45, 51 (D.C. 1982) (quoting Mathews v. Lindsay, 108 App. D.C. 292, 281 F.2d 927, 928 ...

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