The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
On January 25, 2003, a tee fitting froze and burst in the dry sprinkler system at the Kellogg Conference Center on the campus of Gallaudet University ("Gallaudet") in Washington, D.C., causing significant water damage. This case is about who is legally responsible for the damage. Plaintiff St. Paul Mercury Insurance Company ("St. Paul") was Gallaudet's property insurer, and has been subrogated for Gallaudet in this litigation. St. Paul filed suit alleging breach of contract and negligence against Defendant Capitol Sprinkler Inspection, Inc. ("Capitol Sprinkler"), the company that was contracted to perform semi-annual inspections of the sprinkler system. Capitol Sprinkler, in turn, filed suit against third-party Defendant Guest Services, Inc. ("Guest Services"), the building management company at the conference center, also for breach of contract and negligence.
On September 2, 2008, the Court issued an Order and Memorandum Opinion that held in abeyance St. Paul's and Guest Services's Motions for Summary Judgment against Capitol Sprinkler. The Court ordered the parties to file supplemental briefing concerning whether Capitol Sprinkler's breach of contract and negligence arguments were cognizable in the absence of any expert testimony proffered by Capitol Sprinkler.*fn1 The Court shall fully incorporate its September 2, 2008 Memorandum Opinion by reference herein.
After thoroughly reviewing the parties' original and supplemental submissions to the Court, relevant case law and statutory authority, and the record of the case as a whole, the Court finds that Capitol Sprinkler cannot establish the necessary elements of its breach of contract and negligence arguments in the absence of expert testimony. Accordingly, the Court shall GRANT St. Paul's  Motion for Partial Summary Judgment as to its breach of contract claim, and GRANT Guest Services's  Motion for Summary Judgment. Guest Services shall be dismissed from further proceedings. By separate Order, the Court shall set a Status Hearing to discuss further proceedings for the two remaining claims in this case -- St. Paul's breach of contract claim (as to which liability has been established) and St. Paul's negligence claim (as to which St. Paul did not move for summary judgment).
A. Factual Background*fn2
Gallaudet is the owner of the Kellogg Conference Center (the "Conference Center") in Washington, D.C. Pl.'s Stmt. ¶ 1. The Conference Center is a five-story building that houses meeting rooms, 93 guest rooms, and other areas. Def.'s Stmt. ¶¶ 3, 4. The building has a sprinkler system that was installed by Capitol Sprinkler either during its construction between 1996-1998 or thereafter. Id. ¶ 2. Portions of the building are restricted (such as the guest rooms) and are accessible only by using specific key cards. Id. ¶ 9.
On February 11, 2002, Gallaudet contracted with Guest Services to provide operational and management services for the Conference Center. Id. ¶ 13. Guest Services, in turn, contracted with Capitol Sprinkler on April 22, 2002, to perform semi-annual inspections of the sprinkler systems at the Conference Center. Pl.'s Stmt. ¶ 2.
The agreement between Guest Services and Capitol Sprinkler (hereinafter, the "Inspection Agreement") obligated Capitol Sprinkler to "open condensation drains on drum drip connections and drain low points during fall and winter inspection[s]." Id. ¶ 3. Vernon Vane, Capitol Sprinkler's supervisor of inspections, confirmed that Capitol Sprinkler's inspectors were supposed to drain "drum drips" during inspections in accordance with this provision:
Q:... And under that it says "[o]pen compensation drains on drum [drip] connections and drain low points during fall and winter inspection." That right?
Q: That is the work that's supposed to be done by Capitol Sprinkler's people when they are at the job site. Is that correct?
Pl.'s Mot., Ex. D at 49:11 - 49:18 (Depo. Tr. of V. Vane); Pl.'s Stmt. ¶ 6 (same).
On January 9, 2003, Capitol Sprinkler employees Michael Bowlin and Tom Scott inspected the sprinkler system at the Conference Center. Pl.'s Stmt. ¶¶ 7, 8. Because they needed access to certain areas of the building that were restricted, the inspectors were accompanied by an escort who could provide them with such access. Def.'s Stmt. ¶¶ 16; 21. During the inspection, Mr. Bowlin and Mr. Scott drained all of the drum drips except for the one that was located above the building's conference room 5200. Pl.'s Mot., Ex. F at 50:10 - 50:15 (Depo. Tr. of M. Bowlin) ("Q: Now did you drain, you and Mr. Scott, drain all of the drain points during the January 9, 2003 inspection? A: All but the one in that room. Q: The one above conference room 5200? A: Correct"). The drum drip above conference room 5200 was the last one that needed to be drained during the January 9, 2003 inspection. Def.'s Stmt. ¶ 28. Mr. Bowlin testified that he and Scott were supposed to drain that drum drip. Id. at 50:21 - 50:22 ("Q: Were you supposed to drain that drain? A: Yes").
According to Mr. Bowlin's deposition testimony, and not refuted by contradictory evidence in the record, Mr. Bowlin and Mr. Scott did not drain the drum drip above conference room 5200 because their escort did not have immediate possession of the key card necessary to give them access to the room: "We were going to the room and when we got to the room he [the escort] says, 'I don't have a card. I have to go down stairs and get the card for the access.'" Pl.'s Opp'n, Ex. 7 at 51:22 - 52:3 (Depo Tr. of M. Bowlin). Mr. Bowlin's testimony is internally inconsistent as to whether he asked the escort to retrieve the key card. Compare id. at 54:18 - 54:21
("Q:... did you ask him to go get the card?
A: No, I didn't ask him to go get the card") with id. at 56:6 - 56:14
("Q: Why didn't you ask him to go get the card so you could have access to drain the last drain you had left?
A: I asked him to get the card but I don't remember him going to get the card.
Q: So you don't remember him saying, 'I refuse to get the card' or anything like that?
A: He didn't refuse to get the card"). Nevertheless, Bowlin testified that he asked the escort to drain the drum drip himself instead of retrieving the key card: he just kind of looked at us like, you know, he really didn't want to [get the key card] -- he would take care of it. He said he would take care of the drum drip, and I asked him, I said 'Are you going to take care of this' -- I said, 'You know what?
I can't get in the room. Are you going to take care of this drum [drip]?
Id. at 54:11 - 54:17. See also id. at 56:16 - 56:22 ("Q:... Did you ask him, since you don't have a card, 'Will you take care of the drum drip?' A: I asked him if he would take care of the drum drip. Q: So you made a request? A: I made a request"). Mr. Bowlin indicated that it would have taken between five to ten minutes to retrieve the key card, or "[h]owever long it takes  to get to the elevator, go downstairs to the front desk, or however fast the elevator runs." Def.'s Opp'n to Pl.'s Mot., Ex. E at 52:11 - 52:21 (Depo. Tr. of M. Bowlin). Mr. Bowlin and Mr. Scott left the building and completed an inspection report, indicating that all of the "dry valves [were] protected from freezing" and "all areas and valves [were] protected from freezing." Third-Party Def.'s Stmt. ¶¶ 10, 11; Def.'s Resp. Third-Party Stmt. ¶ 10. No "deficiencies" were noted on the report, and the report does not indicate that a drum drip had not been drained or that the inspectors had requested that an escort drain a drum drip. See Third-Party Def.'s Mot., Ex. 5 at 2 (7/9/03 Inspection Report).
The drum drip above conference room 5200 was never drained. Pl.'s Stmt. ¶ 13; Def.'s Resp. Stmt. ¶ 13. On January 25, 2003, a tee fitting in the sprinkler system froze and burst, allowing water to discharge. Pl.'s Stmt. ¶ 11. It is undisputed that the tee fitting froze and burst because the drum drip ...