September 2, 2010
DONNA JEAN PHILLIPS AND STANLEY EDWARD PHILLIPS, APPELLANTS,
FUJITEC AMERICA, INC., ET AL, APPELLEES.
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
Argued March 31, 2010
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.
I. Factual Background
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.
II. Standard of Review
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 submission to a jury or is [it] so one-sided that one party must prevail as a matter of law."*fn6
III. Legal Analysis
The sole issue appellant raises is whether, based on the record before us, a reasonable jury could conclude that Ms. Phillips did not assume the risk of falling through the gap between the elevator cab and the landing. Put differently, we are asked to determine whether the record supports the legal conclusion that Ms. Phillips so clearly "assumed the risk" that no reasonable juror could find for appellants. Appellees, in addition to defending the trial court's ruling, assert that Ms. Phillips was contributorily negligent as a matter of law.
As a threshold matter, we note that two related but distinct common law theories could potentially bar recovery in a case like this. First, if a plaintiff "by [her] own negligence . . . proximately contributed to the injury," she cannot recover.*fn7 A second theory, commonly known as assumption of the risk, also bars recovery where a plaintiff voluntarily encounters a known risk.*fn8
Though these two defenses may overlap, each requires a different analytical approach. Contributory negligence usually requires a determination of the reasonableness of the plaintiff's conduct, whereas assumption of risk focuses on the voluntariness of it.*fn9 Crucially, assumption of the risk typically involves a "voluntary exposure to a reasonable risk,"*fn10 such as the risk incurred by attendees of spectator sports events.*fn11
Where the plaintiff voluntarily but unreasonably accepts a known risk created by the defendant's negligence, either defense could theoretically apply.*fn12 In Scoggins, however, this court - in keeping with the Restatement (Second) of Torts - chose to analyze such "hybrids" as contributory negligence cases, because the focus in such cases is on the reasonableness of the plaintiff's conduct rather than the voluntariness of it.*fn13 We choose similarly to apply that framework here. Ms. Phillips could not have been unaware that the gap below the elevator cab presented her with an unreasonable risk if she tried to exit.*fn14 She knew that the gap was there, and was told several times by Mr. Snow that it would be unsafe for her to climb down. Moreover, even though she did not know the exact size of the gap below the cab, she did know that the opening she had to crawl through to leave the elevator cab was quite narrow,*fn15 such that she should have been able to reasonably conclude that the remaining distance between the cab and the landing floor was significant. Appellants' own elevator expert opined that it is widely recommended that passengers should stay inside the elevator when it gets stuck between floors; he further stated that Ms. Phillips "would have been fine" had she stayed in the cab. It follows that Ms. Phillips voluntarily exposed herself to an unreasonable risk of death or injury by trying to leave. Therefore, since the risk she voluntarily encountered was unreasonable, contributory negligence, rather than assumption of the risk, furnishes the applicable analytical framework.
Applying that framework, we conclude that Ms. Phillips was contributorily negligent as a matter of law. Indeed, the trial court's analysis confirms this conclusion. Although applying assumption of risk principles, the court concluded that the evidence was wholly one-sided in demonstrating that Ms. Phillips "appreciated" the risk of leaving, based on her awareness of the gap under the cab, and her insistence on getting out on her stomach after first trying to exit in a sitting position despite Mr. Snow's repeated assurances that help was on the way and that she should stay put. These observations all focus squarely on the unreasonableness of her decision to ignore the risk that leaving the elevator posed to her. In our judgment, no reasonable juror could fairly conclude that Ms. Phillips acted reasonably*fn16 when she tried to lower herself from the elevator.*fn17
As discussed above, the trial court also determined that a reasonable jury could excuse Ms. Phillips's negligence based on the "sudden emergency doctrine"*fn18 in light of her attempt to "escape from her uncomfortable situation." Though the stalling of the elevator was certainly unexpected, the law nonetheless requires a plaintiff to act reasonably in confronting such a situation unless she "must make a speedy decision between alternative courses of action and . . . therefore . . . has no time to make an accurate forecast as to the effect of [her] choice."*fn19 In the only case where we have previously held the doctrine applicable, the 79 year-old plaintiff was suddenly confronted with a train of shopping carts rapidly approaching her around a corner, from a distance of approximately four feet. She jumped aside, hit her foot against the curb, fell, and suffered a permanent partial disability.*fn20 We characterized her response as an "instinctive and natural movement to avoid the apparently impending collision."*fn21 In contrast, Ms. Phillips was not reacting to an impending emergency. While she may not have been comfortable in the stalled cab, appellants' own expert testified that she would have been safe had she stayed put, and she had ample reason to suppose that help was on the way. We therefore hold that the sudden emergency doctrine is inapplicable here because there was no situation requiring Ms. Phillips to act "spontaneously . . . without adequate opportunity for reflection."*fn22
Our de novo review of the trial court's ruling leads us to affirm its grant of summary judgment on the alternative ground*fn23 that the uncontroverted facts establish, as a matter of law, that Ms. Phillips's own negligence contributed to her death.