Before Wagner, Chief Judge, and Terry, Steadman, Schwelb, Farrell, Ruiz and Reid, Associate Judges, and King,*fn* Senior Judge.
The opinion of the court was delivered by: Associate Judge Farrell.
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
On Certification of a Question of Law from the United States Court of Appeals for the District of Columbia Circuit
Statement of Chief Judge Wagner, Dissenting, at p. ___.
Dissenting opinion by Associate Judge Ruiz, with whom Chief Judge Wagner and Associate Judge Reid join as to Parts I and III, at p. ____.
Farrell, Associate Judge: Pursuant to D.C. Code § 11-723 (1995), the United States Court of Appeals for the District of Columbia Circuit has certified the following question to this court:
"Under District of Columbia law, and upon the facts described below, may a plaintiff who has voluntarily assumed an unreasonable risk of incurring a particular injury recover from a defendant who failed to take the last clear chance to prevent that injury?" Johnson v. Washington Metro. Area Transit Auth., 321 U.S. App. D.C. 260, 261, 98 F.3d 1423, 1424 (1996) (Johnson II).
The "facts described" by the Circuit Court pose that question in the specific context of a voluntary act of suicide. The court states:
"On March 20, 1986 Devora Johnson jumped from the subway station platform into the path of an oncoming WMATA train. The parties do not contest that Ms. Johnson jumped of her own volition and with the intention of committing suicide." Id. at 261-62, 98 F.3d at 1424-25.
The certified question therefore does not ask us to consider application of the doctrine of last clear chance to a negligent or even reckless plaintiff -- one, for example, who sought to outrace an oncoming train in attempting to cross over the tracks. On the certified facts, Ms. Johnson intended the harm that resulted, her death. Nor are we asked to decide the question in the context of a claim of diminished capacity, where mental illness or other impairment is asserted to have limited the suicide victim's ability to appreciate her peril or encounter it purposely.*fn1 The certified question concerns a plaintiff who, in the Circuit Court's words, "voluntarily . . . invited the particular harm that occurred." Id. at 263, 98 F.3d at 1426. We hold as a matter of law that the doctrine of last clear chance may not be invoked in that situation.*fn2
"The last clear chance doctrine enables a plaintiff to recover despite [her] contributory negligence." District of Columbia v. Huysman, 650 A.2d 1323, 1326 (D.C. 1994) (emphasis added). Under the doctrine,
"a plaintiff . . . is permitted to recover, despite her own contributory negligence, if there is evidence (1) that the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) that the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger; (3) that the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiff's danger and of her oblivi[ousness] to it or her inability to extricate herself from it; and (4) that the defendant, with means available to him, could have avoided injuring the plaintiff after becoming aware of the ...