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September 29, 1995

ELEANOR T. JOHNSON, et al., Plaintiffs,

The opinion of the court was delivered by: OBERDORFER

 In 1989 the Court of Appeals remanded this case for resolution of a disputed material fact: could an unimpaired operator have stopped the train after decedent appeared on the track and before the train struck her? Johnson v. WMATA, 883 F.2d 125, 132, 280 U.S. App. D.C. 53 (D.C. Cir. 1989). One jury was unable to agree. A second jury has resolved that issue in favor of plaintiffs and has awarded damages for wrongful death and survival.

 Defendant moves for judgment as a matter of law or for a new trial. As plaintiff correctly responds, the legal issues raised by defendant have already been resolved. See Johnson v. WMATA, 867 F. Supp. 1103 (D.D.C. 1994). The challenges to trial rulings on various items of evidence may be denied only as either decisions committed to the discretion of the trial court or, if erroneous, harmless in the context of the narrow factual issue resolved. Defendant's motions present twelve issues. They are addressed seriatim:

 1. Suicide

 Defendant contends that the decedent's intentional, deliberate, and intervening suicide attempt precludes plaintiffs' claim and entitles defendant to judgment as a matter of law on the authority of District of Columbia v. Peters, 527 A.2d 1269, 1275-76 (D.C. 1987). In that case a policeman in the line of duty shot and wounded plaintiff's mentally ill decedent. Two years later decedent killed himself after he was found guilty of assaulting the police officer who shot him. The District of Columbia Court of Appeals recognized that

as a general rule, one may not recover damages in negligence for the suicide of another. The act of suicide generally is considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent's death.

 Peters, 527 A.2d at 1275. The court recognized a serious exception where the defendant's negligence caused a mental illness which, in turn, caused the suicide, but only if the negligently caused mental illness created an irresistible and uncontrollable impulse which deprived the suicide of a capacity to govern his conduct in accordance with reason. Peters failed to show that the police negligence created an irresistible impulse in plaintiff.

 Unfortunately for defendant, the Court of Appeals opinion which remanded this case specifically addressed the Peters case and noted that the Peters rule "sheds no light on the case at bar" because Peters does not modify "the duty to prevent injury to others when their fate has fallen into one's hands." Johnson, 883 F.2d at 131-32. Nor has the remanded opinion on this issue been questioned either by the District of Columbia Court of Appeals or any panel of our Court of Appeals. Compare the issue of last clear chance, infra.

 2. Assumption of Risk

 There is a very respectable public policy and common sense argument that an assumption of risk defense, which precludes consideration of who had the last clear chance, would discourage suicides and that allowing a potential suicide to contemplate the possibility of compensation for heirs and next-of-kin would have an opposite and unfortunate consequence. Compare St. Paul Fire & Marine Ins. Co. v. Molloy, 291 Md. 139, 433 A.2d 1135 (Md. 1981) (denial of insurance payment to arsonist); Rockingham Mutual Ins. Co. v. Hummel, 219 Va. 803, 250 S.E.2d 774 (Va. 1979) (denial of insurance payment to arsonist). However, I remain persuaded that the controlling Court of Appeals remand decision necessarily recognized and precluded a defense based on decedent's assumption of risk. It could have affirmed the original summary judgment for defendant on that ground and conspicuously failed to do so; the facts in dispute which prompted the remand would not otherwise have been material.

 3. Last Clear Chance Doctrine

 a. Negligence of both plaintiff and defendant as predicate to application.

 The Court of Appeals' remand decision indicated that it was not necessary for plaintiff to prove that defendant, as well as plaintiff, had a role in placing plaintiff in a position of danger in order for the last clear chance doctrine to apply. Johnson v. WMATA, 883 F.2d at 129. However, intervening decisions by the District of Columbia Court of Appeals, as well as subsequent decisions by our Court of Appeals, have addressed this element of the Johnson remand opinion and have held that, as a matter of District of Columbia law, proof of defendant's responsibility in placing plaintiff in a position of danger is required in order for the last clear chance issue even to arise. See Belton v. WMATA, 20 F.3d 1197, 1200, 305 U.S. App. D.C. 333 (D.C. Cir. 1994); Robinson v. District of Columbia, 580 A.2d 1255, 1258 (D.C. 1990); compare Andrews v. Wilkins, 290 U.S. App. D.C. 95, 934 F.2d 1267 (D.C. Cir. 1991).

 Efforts to obtain pretrial clarification having failed, see Johnson v. WMATA, 867 F. Supp. 1103, 1104-06 (D.D.C. 1994), the apparently sounder course was to require plaintiffs to meet the later rendition of the Circuit rule announced in Belton v. WMATA, 20 F.3d 1197, 305 U.S. App. D.C. 333 (D.C. Cir. 1994). Accordingly, instructions required the jury to find that the defendant as well as the plaintiff put decedent in peril.

 Having prevailed on the doctrinal issue, defendant challenges the verdict as unsupported by evidence of defendant's responsibility for decedent's peril. Indeed, it has already been determined that defendant did nothing to cause decedent to jump onto the tracks. Johnson, 883 F.2d at 128. Nevertheless, the evidence clearly established that the operator ingested drugs and then proceeded to operate a subway train. From this evidence, a jury could find gross, indeed wilful, negligence.

 It is now accepted as a matter of law in mass drug testing decisions that the use of drugs impairs performance without proof of impairment, and the Supreme Court has held that this fact is sufficient to justify what would otherwise be an intrusive search without probable cause in violation of the Fourth Amendment. See, e.g., Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 620-21, 628, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989). By the same token the jury in this case could reasonably infer that the operator's voluntary ingestion of drugs before he began the fatal run put decedent along with countless passengers and others who might stray into the path of his train in sufficient peril to satisfy the stricter Belton rendition of the last clear chance doctrine.

 b. Decedent could have extricated herself.

 On more than one occasion defendant has unsuccessfully sought a ruling that, as a matter of law, decedent could have extricated herself from her peril by crawling into a space beside the tracks and under the platform. Defendant presented evidence to the jury about the size and accessibility of the space. Counsel addressed the issue in argument. The jury could have concluded from the evidence (albeit evidence adduced primarily from defendant's witnesses on direct and cross-examination) that a reasonable person situated on the tracks and confronted with an oncoming train would not have known of the location of a crawl space and would not have reason or opportunity to decide that it would provide safety. Johnson, 764 F. Supp. 1568, 1582-83. The accessibility and feasibility of the crawl space posed a jury issue, ...

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