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KROMBEIN v. GALI SERVICE INDUSTRIES

May 6, 2004.

KARLISSA B. KROMBEIN, Plaintiff,
v.
GALI SERVICE INDUSTRIES, INC., et al., Defendants



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

GRANTING DEFENDANT GALI'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT REIT'S MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE
I. INTRODUCTION
When the plaintiff stepped off the elevator at work one morning, two paths diverged before her, one to the right and one to the left. She took the one to the left, and that made all the difference. While proceeding along that path, she slipped on the freshly-cleaned floor, sustaining injuries. The plaintiff subsequently filed this tort case against defendant Reit Management & Research, LLC ("defendant Reit"), the company that managed her employer's office building, and defendant Gali Service Industries, Inc. ("defendant Gali"), the company whose employees had applied the cleaning agent to the floor (collectively, "the defendants"). The matter now comes before the court on the defendants' respective motions for summary judgment. Defendant Gali argues, inter alia, that its contributory-negligence affirmative defense bars the plaintiff from recovery. Similarly, defendant Reit seeks judgment as a matter of law on its assumption-of-risk affirmative defense. Because there is no genuine issue of material fact concerning the plaintiffs contributory negligence, the court grants defendant Gali's motion. In contrast, the court denies without prejudice defendant Reit's motion given the existence of genuine issues of material fact regarding the plaintiff's alleged assumption of risk.

  II. BACKGROUND

  A. Factual Background

  On the morning of September 13, 1999, the plaintiff, employed as an attorney for the United States Army Corps of Engineers, arrived for work in the District of Columbia. Compl. ¶ 7. At that time, defendant Reit managed the office building and had contracted defendant Gali to perform the building's janitorial and cleaning services. Id. ¶¶ 3-4.

  After riding the elevator up to the eighth floor with another passenger, the plaintiff exited the elevator and entered a vestibule from which a hallway to her right and a hallway to her left led to her office. Pl's Dep. Tr. ("Pl's Dep.") at 29, 45-46; Def. Gali's Statement of Undisputed Material Facts ("Def. Gali's Statement") ¶¶ 6, 11; Def. Reit's Mot. at 8. The hallway to the right snaked around the building for 200 feet before reaching her office, a distance greater than that between the elevator and her office along the path to her left. Pl's Dep. at 45; Def. Gali's Statement ¶ 11; Def. Reit's Mot. at 8.

  As her elevator companion proceeded down the hallway to the right, the plaintiff turned left. Pl's Dep. at 29. She observed "one or two . . . yellow wet floor signs" along the path in front of her. Id. at 29-30; Def. Gali's Statement ¶ 8; Def. Reit's Statement of Undisputed Material Facts ("Def. Reit's Statement") ¶ 4. As she walked forward, the shininess of the floor made her realize that the floor was wet. Pl's Dep. at 30, 36; Def. Gali's Statement ¶ 8; Def. Reit's Statement ¶ 6. Standing in the vestibule were three individuals wearing clothing that identified them as cleaning personnel. Pl.'s Dep. at 30, 36-37. The plaintiff saw in their possession a mop and pail, with one of them moving the mop across the floor. Id. at 37, 39.

  Nothing indicated to the plaintiff that the path to the right was in a slippery condition. Id. at 46-47. Also, her schedule that morning was fairly flexible and she had no reason to reach her office in a hurry. Id. at 44; Def. Gali's Statement ¶ 12. Nonetheless, she walked "about ten or twelve" steps from the elevator toward the wet floor. PL's Dep. at 40; Def. Gali's Statement ¶ 14. After taking three or four steps on the wet surface, she slipped and fell. Pl.'s Dep. at 40; Def. Reit's Statement ¶ 8. Following her spill, she got up "as fast as [she] possibly could" and walked to her office, where she sat at her desk and "shook for a while." PL's Dep. at 47-48.

  Several hours later, the plaintiffs husband transported her to a nearby hospital. Compl. ¶ 11. At first, medical personnel treated the plaintiff for "extreme back pain," but an orthopedic surgeon later informed her that she "had likely sustained a cracked sacrum and neurological disruption of the lumbar area of her lower back." Id. ¶¶ 11-12. Nearly four years after the accident, the plaintiff retired from her job with the Army Corp of Engineers. PL's Show-Cause Resp. ¶ 2.

  B. Procedural History

  On September 12, 2002, the plaintiff and her husband initiated this suit, asserting a negligence claim against defendant Gali and a negligent-supervision claim against defendant Reit. The complaint bases the court's jurisdiction on diversity of citizenship pursuant to 28 U.S.C. § 1332.*fn1 Compl. ¶ 1. Specifically, the complaint alleges that defendant Gali negligently applied an excessive amount of soap and wax to the floor and performed its cleaning services "in contravention of its contractual and practical agreements with defendant Reit." Id. ¶¶ 14, 16. The complaint further avers that defendant Reit negligently supervised defendant Gali's janitorial work. Id. ¶¶ 17, 19. The plaintiff seeks $2 million in damages allegedly resulting from her sustained injuries. Id. ¶ 22.

  On October 8, 2002, defendant Gali filed its answer, listing, inter alia, contributory negligence and assumption of risk as affirmative defenses. Def. Gali's Answer at 1-2. Ten days later, defendant Reit submitted its own answer, raising the same affirmative defenses and a cross — claim against defendant Gali for indemnity or contribution. Def. Reit's Answer at 4; Def. Reit's Cross-cl. ¶ 3. On October 28, 2002, defendant Gali responded to the cross-claim by denying liability to defendant Reit and declaring that, between the two of them, defendant Reit was "the active, moving and efficient cause of any injuries claimed by the plaintiff." Def. Gali's Answer to Cross-cl. at 1-2.

  On May 8, 2003, the defendants deposed the plaintiff. Pl.'s Dep. at 1. Around the same time, the plaintiff served her answers to the defendants' interrogatories. Pl.'s Opp'n Ex.3. At the initial scheduling conference on March 4, 2004, the parties informed the court that, even though they had not completed discovery, they were ready to proceed to summary judgment on the contributory-negligence and assumption-of-risk affirmative defenses. The parties believed that a ruling on these affirmative defenses could result in a final resolution of the matter, thus saving them from unnecessarily expending time and expense through further litigation. The court granted the parties' request and set a briefing schedule for the defendants to file their summary — judgment motions. Initial Scheduling Order at 1. Shortly thereafter, the parties stipulated to a dismissal with prejudice of the plaintiff's husband from the case on the ground that he was not married to the plaintiff at the time of the accident. Joint Stipulation at 1.

  On March 12, 2004, defendant Gali filed its motion for summary judgment on the affirmative defenses of contributory negligence and assumption of risk. Def. Gali's Mot. at 8-13. That same day, defendant Reit filed its own motion for summary judgment, asserting that the plaintiff assumed the risk of her ...


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