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Youssef v. 3636 Corporation

July 26, 2001

SOHAIR YOUSSEF, APPELLANT
v.
3636 CORPORATION AND JONATHAN WOODNER CORPORATION, APPELLEES



Before Terry, Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge)

Argued June 15, 1998

One cold February evening, appellant Sohair Youssef slipped and fell outside her apartment building on an entrance mat that had become partially covered with ice during a day of inclement weather. Mrs. Youssef sustained a serious injury to her shoulder that caused considerable pain and required surgical treatment. She brought suit against 3636 Corporation and Jonathan Woodner Company, the building's owner and manager, respectively, seeking to recover damages under a theory of negligence. At the close of Mrs. Youssef's case, the court granted the defendants' motion for judgment as a matter of law on the ground that Mrs. Youssef had failed to establish that the defendants owed her a duty of care. We reverse.

I.

In February 1993 Mrs. Youssef and her husband lived in the Woodner Apartments at 3636 Sixteenth Street, N.W. The twelve-story building contains approximately 1,100 residential units, and its lobby houses several retail shops, including a beauty salon, a health club, a restaurant, and a small grocery store. On the day of Mrs. Youssef's injury, the entrance area outside the front door was covered by a canopy, and on the ground beneath the canopy was a slip-resistant mat. *fn1

On the evening of February 26, Mrs. Youssef and her husband went out at 5:00 p.m. and returned home around 9:30 p.m. When they left their apartment, it was snowing lightly, but no snow had yet accumulated on the walkways, though there was some slush in the driveway leading to the entrance of the building. When they returned, it was still snowing. *fn2 The sidewalk by this time was covered with snow, so the Youssefs walked in the driveway, which was "slushy" because of the vehicle traffic. As they approached the entrance to the building, Mrs. Youssef stepped onto the curb and scraped the snow from her shoes. When she looked at the mat near the entrance, it "looked clear . . . and safe." As she stepped onto the mat, however, her foot slipped, and she fell backwards to the ground, reaching out with her left hand to break the fall. While she was still on the ground, both Mrs. Youssef and her husband inspected the mat. They saw a thin film of ice - "less than half a centimeter" - on the mat, covering an area approximately eighteen inches in diameter.

Denise Hale, a security guard employed by the Jonathan Woodner Company, which managed the building, saw Mrs. Youssef's fall through the glass entrance doors and promptly went outside to offer assistance. Ms. Hale did not touch the mat, but she saw that it was wet. Ms. Hale helped Mrs. Youssef to a chair in the lobby and said, "I'm sorry for that. We have a short crew today." *fn3 Because Mrs. Youssef was in a lot of pain, Ms. Hale summoned an ambulance, which took Mrs. Youssef to Georgetown University Hospital.

Ms. Hale was stationed at the security desk in the front lobby of the building from 3:00 p.m. to 11:00 p.m. At trial she did not recall whether any members of the grounds crew had sanded or salted the entrance during her shift that night. She testified, however, that she had been instructed by her supervisor to keep the front entrance to the building, including the mat under the canopy, clear of any hazards such as snow, ice, or spilled drinks. If she saw any dangerous condition, she was obliged to call the grounds crew and ask them to come and take care of it. On February 26 no such condition was called to her attention, and, except for Mrs. Youssef, she did not see anyone slip or fall outside the entrance.

Earl Jones, Jr., director of security at the Woodner at the time of Mrs. Youssef's fall, testified that the Woodner "sets a very high standard for keeping the property free of dangers, hazards, and risks . . . [and] places a high premium on safety on its premises." *fn4 The grounds crew was responsible for maintaining the entrance to the building, including sweeping, washing, and de-icing the walkway. He testified that the security guard stationed in the lobby was responsible for notifying the grounds crew of any potentially unsafe condition. In addition, the Woodner had contracted with T.J. Snow Removal Company to provide service in the event that snowfall exceeded the ability of its grounds crew to keep the premises safe. The contract provided that if the snow accumulation exceeded two inches, T.J. Snow Removal would automatically come to clear the walkways and driveway, without being called by anyone at the Woodner.

Abel Nuñez, the grounds crew supervisor, testified that in his more than ten years of service at the Woodner, there had never been a complaint about his crew's snow removal work. Mr. Nuñez lived in the building at a reduced rent in exchange for being "on call" all the time. During inclement weather in the wintertime, Mr. Nuñez and his crew were responsible for inspecting the entranceway "every twenty minutes" for accumulated snow or ice. If there was any snow or ice present, he was required to have it removed and to have the area treated with sand and salt. *fn5

Dr. Talaat Maximous, an orthopedic surgeon, examined Mrs. Youssef about two weeks after her injury. She told the doctor that she had fallen in front of her apartment building and complained of pain in her left shoulder. Since her x-rays revealed no dislocation or fracture, he prescribed anti-inflammatory medicine. When Dr. Maximous saw Mrs. Youssef again in July, however, she was still suffering a great deal of discomfort. A magnetic resonance imaging (MRI) examination revealed a torn rotator cuff in her left shoulder which needed to be surgically repaired. Dr. Maximous performed such surgery in November 1993, but Mrs. Youssef continued to suffer sustained pain, so after two post-operative examinations the doctor referred her to a physical therapist. Dr. Maximous further testified about the different medicines Mrs. Youssef had to take and said that, up to the time of trial in April 1997, Mrs. Youssef continued to suffer pain and was limited in her activities.

At the close of Mrs. Youssef's case, defense counsel moved for judgment as a matter of law, contending that she had failed to establish that the defendants had either actual or constructive notice of a patch of ice on the mat. Counsel also argued that under Croce v. Hall, 657 A.2d 307 (D.C. 1995), the mere existence of snow and ice does not create liability. Mrs. Youssef's counsel, arguing in opposition, emphasized that there was a security guard stationed in the lobby just inside ...


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