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.
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.
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 ...