roadway, several feet from the concrete gutter. The resting place of the motorcycle and the gouge marks in the asphalt confirm that the accident occurred on the asphalt portion of the roadway. The evidence that the impact occurred in the roadway supports the Court's finding that plaintiff had stepped into the roadway prior to the impact.
Conclusions of Law
The FTCA provides a basis for recovery against the United States for the negligent and wrongful actions of its employees. 28 U.S.C. § 2675. The potential liability of the United States is governed by the law of the jurisdiction in which the alleged negligent or wrongful act occurred. 28 U.S.C. § 2674. In the District of Columbia, there is liability for negligence only where there is a duty, a breach of that duty, and injury proximately caused by that breach. Williams v. Baker, 572 A.2d 1062 (D.C. 1990). A breach of duty may be said to occur from the violation of a common-law duty, such as the duty to exercise ordinary or reasonable care,
or from the violation of a municipal ordinance. Schneider v. District of Columbia Transit Sys., 188 F. Supp. 786 (D.D.C. 1960).
Here, the testimony of the witnesses and other evidence adduced at trial does not demonstrate by a preponderance of the evidence that Officer Williams's operation of the motorcycle was "negligent or wrongful." Accordingly, plaintiff cannot recover under the FTCA. See 28 U.S.C. § 2675(a). Officer Williams, who was experienced and a certified motorcycle instructor, was traveling at the posted speed limit of 20 miles per hour. His traveling in the right portion of the lane, which is less safe for pedestrians, was reasonable under the circumstances, as approaching truck-traffic made riding in the left portion impractical, and as plaintiff was initially in the concrete gutter, rather than in the roadway. Moreover, there was no showing at trial that riding in the right is "unsafe," and the Court observes, in any event, that a motorcycle traveling on the right poses no greater threat to pedestrians than a car, as a motorcycle on the right portion of the road travels in the same area as the right side of an automobile. In addition, when Officer Williams saw plaintiff in the roadway only some ten feet away, he swerved, sounded his horn, and applied his brakes. The Court observes that Officer Williams did not breach his duty by failing to sound his horn and apply his brakes when he first noticed plaintiff 100 feet away; at that time, plaintiff was in the concrete gutter, not in the roadway in the motorcycle's path.
Assuming arguendo that Officer Williams was negligent, however, plaintiff would be unable to recover damages because of his contributory negligence and assumption of risk. A plaintiff may not recover damages, even against a negligent defendant, where the plaintiff has been contributorily negligent. George Washington University v. Waas, 648 A.2d 178, 180 (D.C. 1994); see also District of Columbia v. Mitchell, 533 A.2d 629, 639-640 (D.C. 1987). Thus, any failure on plaintiff's part to exert reasonable care under the circumstances will preclude recovery. Waas, 648 A.2d at 180. The violation of a municipal law or regulation when "the regulation was designed to prevent the type of accident that occurred" constitutes negligence per se. Lyons v. Barrazotto, 667 A.2d 314, 323 (D.C. 1995). Similarly, the doctrine of assumption of risk, which applies when a plaintiff has voluntarily incurred a known risk, also precludes recovery of damages. Mitchell, 533 A.2d at 639.
Plaintiff engaged in unreasonable conduct by stepping into the northbound roadway without first checking for oncoming traffic from behind him. See Lyons, 667 A.2d at 321. In addition, plaintiff's conduct violated several District of Columbia Municipal Regulations ("DCMRs"), all of which were designed to prevent harm by motor vehicles to pedestrians walking in roadways. Thus, these violations constitute negligence per se. See id. at 323.
DCMR § 2305.5 provides:
Where sidewalks are not provided, any pedestrian walking along and upon a street or highway shall, where practicable, walk only on the left side of the roadway or its shoulder facing traffic which may approach from the opposite direction.