D.C. 87 (D.C. Cir. 1988); Jones v. WMATA, 742 F. Supp. 24, 26 (D.D.C. 1990).
Mr. Gottfried also hypothesized that a vertical rise of 2 3/8 inches above the normal level coach threshold-platform position was possible and that this figure exceeded the 1 1/2 inch maximum vertical rise permissible under WMATA's own standards. Although this 2 3/8 inch rise is mathematically possible,
there is no evidence to support this hypothesis. In order for an air bag to be fully deflated, either the bag would have to have been ruptured or the leveling valve supplying that bag would have to have been defective, and there is no evidence of either having taken place. The maintenance and service records for all the coaches possibly involved in the plaintiff's accident fail to disclose any defects that would support Gottfried's hypothesis of a totally deflated outboard suspension system concurrent with a maximally inflated inboard suspension system.
On page 8 of her opposition, the plaintiff resorts to yet another theory of liability. She argues that WMATA was also negligent in failing to remove from service a "high car" and that the train operator failed to respond to the "rough ride signal" produced by a "high car." As evidentiary support for this theory, five months after the motion for summary judgment was fully briefed and under consideration by the Court, the plaintiff submitted an affidavit of her daughter, Jan Clark, which stated that as the train was coming to a stop at the Gallery Place station, she observed that the door thresholds of the coach her mother and she were about to board were elevated several inches above the platform.
Since the plaintiff never pleaded negligence on the part of the train operator, that claim is not properly before the Court. Nonetheless, if it were properly before the Court, it too must fail for lack of evidentiary support. The only evidence to support that theory is the affidavit by Jan Clark. However, there is no evidence that the condition she allegedly observed prior to the train coming to a stop existed long enough for the train operator to have experienced the rough ride feeling of a high car. A train operator cannot be held accountable for a condition about which he had no reasonable notice and no time to respond.
Lastly, the plaintiff claims that her testimony and that of her daughter and coworker that the door threshold of the coach was six and eight inches above the platform at the time she attempted to enter the coach creates issues of fact barring summary judgment.
Each of these witnesses readily admitted that the vertical rise was merely an estimate on his or her part since no actual measurements were taken at the time. On the other hand, the fully corroborated and uncontradicted evidence clearly establishes that mechanical stops preclude the coach door threshold from rising more than 1 1/2 inches above the platform. The maintenance and service records of all 130 coaches traveling through the Gallery Place station during the rush hour period on May 20, 1993, failed to disclose any damage or defect in these mechanical retrains. Thus, it is physically impossible for the door threshold of a coach to rise to the level of six inches or more inches above the platform. Even the plaintiff's expert testified that the maximum rise mathematically possible given the worst possible scenario of a simultaneous fully deflated air bag and compressed mechanical spring versus a fully inflated air bag and fully extended mechanical spring would only create a door threshold vertical elevation of 2 3/8 inches above the platform level.
"Judges may, under certain circumstances, lawfully put aside testimony that is so undermined as to be incredible." Johnson v. WMATA, 280 U.S. App. D.C. 53, 883 F.2d 125, 128 (D.C. Cir. 1989), cert. denied, 494 U.S. 1027. When a claim is supported solely by the testimony of interested witnesses and it has clearly been demonstrated that the testimony of the interested witness is physically impossible, courts may lawfully remove a purported factual issue from jury consideration. Id. This is such a case. The estimates of the plaintiff, her daughter and coworker are so at odds with the objective physical evidence, and the testimony of disinterested witnesses, including the plaintiff's own expert witness regarding the capabilities of the suspension system of WMATA coaches in service at the time, that a reasonable juror could only conclude that the elevation of the coach above the platform that the plaintiff and her witness contend took place, was physically impossible and, therefore this testimony must be disregarded. See generally, Ralston Purina Co. v. Hobson, 554 F.2d 725 (5th Cir. 1977); Law v. Virginia Stage Lines, 144 U.S. App. D.C. 115, 444 F.2d 990 (D.C. Cir. 1971); Southern Pac. Co. v. Matthews, 335 F.2d 924 (5th Cir. 1964); Washington, Marlboro & Annapolis Motor Lines v. Maske, 89 U.S. App. D.C. 36, 190 F.2d 621 (D.C. Cir. 1951).
For the foregoing reasons, the Court finds that no genuine issues of material fact exist with respect to the plaintiff's claim of negligence and that WMATA is entitled to judgment as a matter of law.
An appropriate order accompanies this memorandum.
October 24, 1994
PATRICK J. ATTRIDGE
UNITED STATES MAGISTRATE JUDGE
Upon consideration of the motion of the defendant Washington Metropolitan Area Transit Authority for summary judgment, the opposition, reply and supplemental pleadings, the entire record and for the reasons stated in the attached memorandum opinion, it is this 24th day of October 1994:
ORDERED that the motion is granted.
FURTHER ORDERED that the complaint is dismissed with prejudice.
PATRICK J. ATTRIDGE
UNITED STATES MAGISTRATE JUDGE