United States District Court for the District of Columbia
May 6, 2004.
KARLISSA B. KROMBEIN, Plaintiff,
GALI SERVICE INDUSTRIES, INC., et al., Defendants
The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING DEFENDANT GALI'S MOTION FOR SUMMARY JUDGMENT
AND DENYING DEFENDANT REIT'S MOTION FOR SUMMARY JUDGMENT
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.
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
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 injuries. Def. Reit's Mot. at 9-13. The court now addresses
the defendants' motions.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood,
43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are
"material," a court must look to the substantive law on which each claim
rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect
the outcome of the action. Celotex, 477 U.S. at 322;
Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A
nonmoving party, however, must establish more than "the mere existence of
a scintilla of evidence" in support of its position. Id. at 252.
To prevail on a motion for summary judgment, the moving party must show
that the nonmoving party "fail[ed] to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322. By pointing to the absence of evidence
proffered by the nonmoving party, a moving party may succeed on summary
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.
Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993).
Rather, the nonmoving party must present specific facts that would enable
a reasonable jury to find in its favor. Greene, 164 F.3d at 675.
If the evidence "is merely colorable, or is not significantly probative,
summary judgment may be granted." Anderson, 477 U.S. at 249-50
(internal citations omitted).
B. The Court Grants Defendant Gali's Motion for Summary
The court turns first to defendant Gali's motion for summary judgment,
which raises the affirmative defenses of contributory negligence and
assumption of the risk. Def. Gali's Mot. at 8-13. In applying the
substantive tort law of the District of Columbia, as it must in this
diversity case, Smith v. Wash. Sheraton Corp., 135 F.3d 779, 782
(D.C. Cir. 1998) (citing Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 553 (D.C. Cir.
1993)), the court recognizes that there is a complete bar to recovery if
defendant Gali prevails on the question of contributory negligence.
Andrews v. Wilkins, 934 F.2d 1267, 1272 (D.C. Cir. 1991) (citing
Wingfield v. Peoples Drug Store, 379 A.2d 685, 687 (D.C. 1977)).
Contributory negligence is the failure "to act with the prudence of an
ordinary reasonable person under the circumstances." Queen v. Wash.
Metro. Area Transit Auth., 842 F.2d 476, 479 (D.C. Cir. 1988)
(citing Stager v. Schneider, 494 A.2d 1307, 1311 (D.C. 1985)).
In addition, whether a plaintiff is contributorily negligent is usually a
question for the jury. Paraskevaides v. Four Seasons Wash.,
292 F.3d 886, 893 (D.C. Cir. 2002). As the D.C. Circuit has recognized,
[o]nly in exceptional cases will questions of
negligence [and] contributory negligence . . .
pass from the realm of fact to one of law. Unless
the evidence is so clear and undisputed that
fair-minded men can draw only one conclusion, the
questions are factual and not legal.
Id. (citations and quotations omitted). This is the rare
and exceptional case, with evidence so clear and unambiguous that the
court must find contributory negligence as a matter of law.
As the party bearing the burden of proving contributory negligence,
Coleman v. Parkline Corp., 844 F.2d 863, 867 (D.C. Cir. 1988)
(citing Stewart v. Ford Motor Co., 553 F.2d 130, 136 n.6 (D.C.
Cir. 1977)), defendant Gali must demonstrate that there is no genuine
issue of material fact on the elements of its affirmative defense.
Celotex, 477 U.S. at 322; Diamond, 43 F.3d at 1540.
Defendant Gali shoulders its burden by articulating specific facts with
undisputed evidence demonstrating that the plaintiff "departed from the
standard of care that is to be expected of a reasonable person" when she
walked on the wet surface. Def. Gali's Mot. at 11. First, the plaintiff
knew about the slippery condition of the floor, based on her visual
observation of the floor itself and one or two cautionary wet-floor signs.
Id.; Pl's Dep. at 29-31, 36; Def. Gali's Statement ¶ 8; Def.
Gali's Reply at 1-2. Second, the plaintiff understood that a wet floor
poses the peril of slipping and falling to the ground. Pl's Dep. at 46;
Def. Gali's Statement ¶ 15; Def.'s Reply at 1-2. Finally, the
plaintiff admitted that she could have avoided the wet floor by taking
the available alternate route to her office. Pl's Dep. at 44-47; Def.
Gali's Statement at ¶ 11; Def. Gali's Mot. at 13; Def. Gali's Reply
at 2. These specific facts definitively establish that the plaintiff
acted with less than ordinary care in choosing the wet path to her
To survive defendant Gali's summary-judgment motion, the plaintiff must
set forth specific facts crystallizing a genuine issue for trial.
Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1041 (D.C.
Cir. 2003) (citation omitted); Greene, 164 F.3d at 675. The
plaintiff, however, fails to spell out any facts that could lead a
reasonable jury to decide in her favor on the contributory-negligence
defense. Id.; see also 3883 Conn. LLC v. District of Columbia,
336 F.3d 1068, 1071 (D.C. Cir. 2003) (explaining that an issue is genuine
"if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party") (citing Morgan v. Fed. Home Loan Mortgage
Corp., 328 F.3d 647, 650 (D.C. Cir. 2003)). Instead, the plaintiff
tersely asserts that a jury should determine whether she was
contributorily negligent. Pl's Opp'n at 6-7. The plaintiff also informs
the court that wet-floor signs do not equate to "no entry." Id.
at 6. These self-serving conclusory declarations, however, do not amount
to specific facts that would lead a reasonable jury to find in her favor.
Kingman Park, 348 F.3d at 1041; Greene, 164 F.3d at
By comparison, the plaintiffs in Paraskevaides brought forth
specific facts to rebut the defendant's summary-judgment motion.
Paraskevaides, 292 F.3d at 893-94. In that case, the plaintiffs
sued a hotel for gross negligence after an unknown perpetrator, using a
missing master key, stole $1.2 million worth of jewelry from their hotel room.
Id. at 887-89. On appeal, the B.C. Circuit held that the
plaintiffs by storing jewelry inside their room's safe rather
than in a hotel safety-deposit box located near the lobby were
not contributorily negligent as a matter of law. Id. at 893-95.
To support its conclusion, the B.C. Circuit relied on two of the
plaintiffs' specific facts, which created a genuine issue. Id.
at 893-94. First, the plaintiffs did not know that the hotel had lost a
master key to the rooms. Id. at 894. Second, the plaintiffs
believed the room safe to be more secure than any of the safety-deposit
boxes due to its remote location. Id. at 893-94.
In the case subjudice, defendant Gali's evidence amply
illustrates that the plaintiff walked where the ordinary reasonable
person would fear to tread. Unlike the plaintiffs in
Paraskevaides, the plaintiff fails to bring to light any
specific facts that create a genuine disputed issue between the parties.
See generally Pl.'s Opp'n. The plaintiff merely offers her
opinion that wet floor signs do not equate to "no entry" and that a jury
should determine whether she was contributorily negligent. Id.
at 6-7. Because defendant Gali has convincingly discharged its burden of
persuasion and the plaintiff has not illuminated a genuine issue for
trial, the court determines that defendant Gali is entitled to judgment
as a matter of law on the issue of contributory negligence. FED. R. CIV.
P. 56(c); Celotex, 477 U.S. at 322; Diamond, 43 F.3d at
1540; Coleman, 844 F.2d at 867; Stewart, 553 F.2d at
136. Accordingly, the court grants defendant Gali's motion for summary
judgment.*fn2 Id. C. The Court Denies Defendant Reit's Motion for Summary
Judgment Without Prejudice
The court now shifts its gaze to defendant Reit's summary-judgment
motion, which attempts to use the defense of assumption of risk as its
silver bullet.*fn3 Def. Reit's Mot. at 9-13. In the District of
Columbia, the affirmative defense of assumption of risk presents a
complete bar to a plaintiff's recovery. White v. United States,
780 F.2d 97, 107 n.36 (D.C. Cir. 1986) (citing Morrison v.
MacNamara, 407 A.2d 555, 566 (D.C. 1979)). The analysis is "heavily
fact-based," and the court should grant summary judgment "only if no real
dispute exists as to the plaintiff's awareness of the relevant danger."
Maalouf v. Swiss Confederation, 208 F. Supp.2d 31, 42 (D.D.C.
2002) (Huvelle, J.) (citing Sinai v. Polinger Co., 498 A.2d 520,
524 (D.C. 1985)); see also White, 780 F.2d at 108 (emphasizing
that the defendant must establish that the plaintiff had actual knowledge
of the danger to prevail on assumption of risk). While it may look like
the doctrines of assumption of risk and contributory negligence overlap,
a clear distinction exists between the two.*fn4 Stager, 494
A.2d at 1311. As opposed to the objective standard employed under contributory negligence, Id.; Queen, 842 F.2d at
479, assumption of risk applies where the plaintiff
"subjectively knows of the existence of the risk and appreciates
its unreasonable character." Jarrett v. Woodward Bros., Inc.,
751 A.2d 972, 986 (D.C. 2000) (quoting Sinai, 498 A.2d at 524)
(emphasis added); see also Well v. Seltzer, 873 F.2d 1453, 1458
(D.C. Cir. 1989) (contrasting the objective inquiry under contributory
negligence with the subjective inquiry under assumption of risk). The
plaintiff's voluntary decision to proceed in the face of that known risk
"relieve[s] the defendant of any duty which he otherwise owed the
plaintiff." Sinai, 498 A.2d at 524.
The burden of proof on assumption of risk rests with defendant Reit.
See White, 780 F.2d at 108 (emphasizing that "[t]o prevail on
its assumption of risk defense, the [defendant] must prove that [the
plaintiff] had full comprehension and appreciation of the risk she was
assuming" (quotation omitted)). In support of summary judgment, defendant
Reit argues that the plaintiff subjectively knew that her steps carried
the risk of injury because she saw a wet-floor sign and noticed the
floor's slippery state, but nevertheless continued to march forward in
the face of danger. Def. Reit's Mot. at 13.
In response, the plaintiff asserts that she did not subjectively
appreciate the full extent of the risk because when she decided to walk
over the floor, she believed the wet substance to be water, a fluid less
slippery than wax. PL's Opp'n at 4-5. But she does not stop there. The
plaintiff also advances specific facts to illuminate a genuine issue with
respect to the subjective knowledge element.
Kingman Park, 348 F.3d at 1041; Greene, 164 F.3d at
675. The plaintiff offers her deposition testimony and answers to
interrogatories, which tend to show that she may not have subjectively
appreciated the risk associated with wax on that fateful day. PL's Opp'n
at 4-5. She specifically highlights those portions of her testimony
which explain that before stepping onto the affected area, she had failed
to realize "that the floor surface was not just wet, but had been coated
with extremely slippery wax and/or soap." Id. at 4 n.8. The
plaintiff's testimony also suggests that by the time she understood that
she was coming up against a substance slicker than water, it was too late
to avoid peril because she was already on top of the slippery surface.
Id. Again referring to her deposition testimony, the plaintiff
further states that she could not have formed a more definite opinion
ahead of time as to what substance the janitorial personnel actually
employed to clean the floor because their cleaning activities did not
usually occur during her regular work hours. Id. at 4. In sum,
the plaintiff supports her position with evidence that sufficiently
establishes a genuine issue on whether the plaintiff subjectively
appreciated the danger from the presence of wax rather than water on the
floor's surface. Celotex, 477 U.S. at 322; Greene, 164
F.3d at 675; White, 780 F.2d at 108; see also Sinai,
498 A.2d at 524 (identifying subjective knowledge as one of the elements
for assumption of risk).
A comparison of the parties' briefs make clear that defendant Reit
offers nothing more than an unsupported belief or hunch that the
plaintiff "proceeded to walk over [the wet floor] with full knowledge of
the facts." Def. Reit's Reply at 3. Such a declarative statement alone
does not satisfy defendant Reit's burden of proving that there is no
genuine issue of material fact on the elements of its affirmative
defense. Celotex, 477 U.S. at 322; Diamond, 43 F.3d at
1540. To determine that defendant Reit has met its burden, the court
essentially would have to turn a blind eye to the plaintiff's supported
and unrebutted position that she did not fully understand the menace
ahead of her. The court is loath to make such a quantum leap. Instead,
the court requires defendant Reit to "show that the plaintiff possessed
full comprehension and appreciation of the danger" in order to prevail on its affirmative defense.*fn5
White, 780 F.2d at 108.
Without pointing to evidence that the plaintiff subjectively knew of
the existence of the risk and appreciated its unreasonable character,
Jarrett, 751 A.2d at 986; Sinai, 498 A.2d at 524,
defendant Reit will not be able to summarily secure a ruling in its favor
on assumption of risk. White, 780 F.2d at 108; Maalouf,
208 F. Supp.2d at 42. Did the plaintiff actually know the risk facing
her as she proceeded to walk across the newly-waxed floor? The answer is
for the jury to decide. This is not to say that as discovery progresses,
there will not come a day before trial when the facts support defendant
Reit's affirmative defense. The court simply concludes that today is not
that day. Accordingly, the court must deny defendant Reit's motion for
summary judgment without prejudice. IV. CONCLUSION
For the foregoing reasons, the court grants defendant Gali's motion for
summary judgment and denies defendant Reit's motion for summary judgment
without prejudice. An order directing the parties in a manner consistent
with this Memorandum Opinion is separately and contemporaneously issued
this 6th day of May 2004.