Appeal from the Superior Court of the District of Columbia (CAB-8459-06) (Hon. Judith Bartnoff, Trial Judge) (Hon. Gerald I. Fisher, Motions Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before RUIZ and KRAMER, Associate Judges, and FARRELL, Senior Judge.
Dawn Marie Phillips fell to her death when she attempted to get out of an elevator that had stalled between floors in the Residences at Gallery Place Condominium on the evening of November 24, 2005. Her parents brought this negligence action against appellees, alleging that they failed to properly maintain and safely operate the elevator. After discovery, the trial court held, as a matter of law, that no reasonable juror could find for appellant because Ms. Phillips had assumed the risk of injury by attempting to leave the elevator while it was stuck between floors. Although we conclude, unlike the trial court, that contributory negligence rather than assumption of the risk furnishes the proper framework for resolving this case, we affirm because we hold that Ms. Phillips was contributorily negligent as a matter of law.
On the night of her death, Ms. Phillips had Thanksgiving dinner with her friends the Snows, who resided on the ninth floor of the Residences. As she was leaving, Mr. Snow accompanied Ms. Phillips so that he could walk her to her car. Mr. Snow's deposition testimony established the events that took place as follows.*fn1
On the way down, the elevator came to a slow stop between the seventh and the sixth floors. The lights flickered, but stayed on. Mr. Snow noticed that the elevator cab doors were partially open. He attempted to get the elevator going again by opening and closing the doors a few times, to no avail. Eventually, he was able to extricate himself from the elevator by employing his training as a first responder.*fn2 He first forced the cab doors open. He then found the latch for the doors to the sixth floor lobby and opened them. After first lying down inside the elevator cab, he lowered himself to the landing on the sixth floor by crawling out of the cab on his stomach, feet first. The doors closed after he performed this maneuver. He then left Ms. Phillips to seek help. Meanwhile, Ms. Phillips found the emergency phone in the elevator and placed a call, but received no answer. She also pressed the "Alarm" button. Finally, using her cell phone, she called Mrs. Snow, who missed the call. She then hailed Mr. Snow, who was talking to the security officer in the main lobby and attempting to lower the elevator with an override key. Ms. Phillips asked him to come back up to the sixth floor.
When Mr. Snow arrived, Ms. Phillips informed him that she wanted to leave the elevator. He told her that management was getting help and she should stay in the elevator because the gap below the elevator cab opened into the elevator shaft, but Ms. Phillips replied; "I don't care. I want to come out the same way you did." Mr. Snow knew that she had a heart condition. He thought Ms. Phillips sounded like she was getting anxious, and, thinking that she would calm down if the doors were open, he told her how to open the doors. He again asked her to stay in the elevator, saying "[t]hey are going to be here soon," but Ms. Phillips refused. She first tried to come out of the elevator facing forward, with Mr. Snow cupping his hands beneath her foot, but failed. Mr. Snow told her she could not come out that way and advised her to lie on her stomach and lower herself, as he had done. As she did so, she told him that she did not want him to touch her because she was concerned about her body image. Something went wrong during the maneuver, and Ms. Phillips fell through the gap between the bottom of the elevator cab and the sixth floor landing*fn3 and down the elevator shaft to her death.
The trial court concluded, as a matter of law, that Ms. Phillips had assumed the risk of injury or death when she tried to leave the elevator. "There is simply no evidence," the court ruled, "from which a reasonable juror could conclude other than that Ms. Phillips was aware of the risk of grievous injury, but chose to ignore that risk and attempt to leave the elevator." The court explained:
Mr. Snow's repeated admonitions to her that it was unsafe to exit and his specific warning that there was a hole beneath the elevator were more than sufficient to appraise (sic) a person of Ms. Phillips's intelligence that it was exceedingly dangerous for her to attempt to escape. A person in her position would have been aware there was a risk that she would slip into the gap and fall down the shaft, even without knowing the exact size of the opening. . . . Plaintiffs have presented no evidence that it was unsafe for Ms. Phillips to remain in the elevator. Indeed, the unrebutted evidence on that issue, including testimony from Plaintiffs' own expert, is that Ms. Phillips was not in any danger.
While reaching these conclusions, the court rejected the defense contention that Ms. Phillips had been contributorily negligent as a matter of law. It did so relying on the "sudden emergency doctrine," which provides that "[a]cts which, if done in calm deliberateness, might be judged negligent, may yet not be so regarded where done spontaneously in response to a normal impulse without adequate opportunity for reflection."*fn4 The court reasoned: "[A] jury could find that Ms. Phillips had a reasonable fear of impending danger if she remained on the elevator, even if the evidence did establish that [she] was negligent in attempting to leave [it]," and thus "the sudden emergency doctrine could apply" and present a triable issue except for the fact - as the judge then concluded - that she had voluntarily assumed the risk of injury from leaving.
We review a grant of summary judgment de novo. In doing so, we view the facts in the light most favorable to the non-moving party and ask whether "the record demonstrates that there is no genuine issue of material fact on which a jury could find for the non-moving party."*fn5 In other words, does the evidence present "a sufficient [factual] disagreement to require ...