The opinion of the court was delivered by: Judge Beryl A. Howell
On September 3, 2009, plaintiff Amanda Mahnke suffered serious injuries when she was hit by a Washington Metropolitan Area Transit Authority (hereinafter "WMATA") bus in Washington, D.C. The plaintiff filed a Complaint against WMATA, alleging, inter alia, that the bus driver, a WMATA employee, negligently operated the bus. Pending before the Court is WMATA's motion for summary judgment on grounds that the plaintiff was contributorily negligent and that precludes a judgment in her favor. The plaintiff denies that she was contributorily negligent, and has filed a motion in limine to prevent the defendant from raising a contributory negligence defense at trial, which is scheduled to commence on October 31, 2011. In addition to these motions, the parties have also filed eleven additional motions in limine to preclude the admission of certain evidence at trial. For the reasons discussed below, the defendant's motion for summary judgment and the plaintiff's motion in limine to preclude the defendant from raising a contributory negligence defense are denied. The parties' additional motions in limine, as well as their objections to proposed exhibits, are addressed seriatim below.
On September 3, 2009, plaintiff Amanda Mahnke was standing at the southeast corner of the intersection of Connecticut Avenue and Florida Avenue in Northwest, Washington, D.C. waiting to cross the street. Pl.'s Opp'n Mot. Summ. J., Statement of Material Facts In Dispute ("Statement of Material Facts"), ECF No. 30, ¶¶ 1, 3. Standing to the plaintiff's left was Gabriela Salazar, another pedestrian who was also waiting to cross the street. Id. at ¶ 3. When the pedestrian "walk" signal became illuminated, both Ms. Salazar and the plaintiff proceeded to cross the street. Def.'s Mot. Summ. J, ECF No. 27, Ex. 3, Salazar Dep. Tr. ("Salazar Dep.") 13, lines 4-14, Mar. 15, 2011. After stepping into the intersection, Ms. Salazar noticed that a WMATA bus was approaching on her left, and immediately stepped back on the curb. Id. at lines 5-14. The plaintiff, however, did not notice the approaching bus, and was struck after she stepped into the crosswalk. See Def.'s Mot. Summ. J., ECF No. 27, Ex. 1, David Stopper Report dated Feb. 8, 2011 ("Stopper Report"), at 2. As a result of the accident, the plaintiff alleges that she suffered numerous injuries, including a fractured skull, epidural hematoma, broken clavicle, fractured ribs, collapsed lung, pelvis fracture, and traumatic brain injuries. Compl. ¶ 13.
Prior to the accident, the WMATA bus that collided with the plaintiff was heading east on Florida Avenue towards Connecticut Avenue. Statement of Material Facts¶ 4. The posted speed limit for that section of Florida Avenue was 25 miles per hour. Id. at ¶ 5. The parties dispute the speed of the metro bus prior to the accident. The plaintiff's expert claims that the bus was traveling as fast as 30 miles per hour, while the defendant's expert contends that the bus was traveling at a speed of approximately 26 miles per hour. Def.'s Reply Opp'n Mot. Summ. J. ("Def.'s Reply"), ECF No. 32, at 4. A witness stated that the bus was going 15 miles per hour. Id. Another witness described the WMATA bus as "just a streak" prior to the accident. Pl.'s Opp'n Mot. Summ. J., ECF No. 30, Ex. B, Det. Michael Miller Report ("Miller Report"), at 00054.
As the WMATA bus neared the intersection of Florida Avenue and Connecticut Avenue, the bus's driver, Carla Proctor, saw the traffic signal change from green to yellow. Id. at 00052. According to a D.C. Metropolitan Police Department accident reconstruction report, Ms. Proctor admits that she accelerated in an effort to clear the intersection, which spans across eight traffic lanes, before the traffic light turned red. Id. The defendant claims that the bus had entered the intersection while the light was still yellow, and concedes that the light turned red before the bus exited the intersection. Statement of Material Facts ¶ 8-9. The plaintiff contends that the traffic light turned red before the bus fully entered the intersection. Id.
According to a video of the accident captured by a District of Columbia Department of Transportation traffic camera, the front of the bus was halfway through the intersection, meaning it had crossed four lanes of traffic, when the plaintiff entered the crosswalk. Pl.'s Mot. Limine, Ex. A, Dep't of Transportation Video Footage of Sept. 3, 2009 Collision, frame 42:08:27. The parties dispute what the video shows about the plaintiff's actions immediately prior to the accident: WMATA contends the video establishes that the plaintiff did not look for any oncoming traffic before entering the crosswalk, Def.'s Mem. Supp. Mot. Summ. J., ECF No. 27, at 7, while the plaintiff argues that she did. Pl.'s Opp'n Mot. Summ. J., ECF No. 30, at 14. The plaintiff herself cannot remember the details of the accident prior to being struck. Def.'s Mot. Summ. J., ECF No. 27, Amanda Mahnke Dep. Tr. ("Mahnke Dep.") 27, lines 8-12, Sept. 7, 2010.
On January 7, 2010, the plaintiff filed a Complaint against WMATA,*fn1 alleging that the defendant's bus driver, Ms. Proctor, was negligent in her operation of the WMATA bus that hit the plaintiff.*fn2 Compl. ¶¶ 17-29. The plaintiff seeks $10,000,000 in compensatory damages for the injuries she sustained as a result of the accident. Id. at 10.
On August 5, 2011, following approximately thirteen months of
discovery, WMATA moved for summary judgment, arguing that the
plaintiff is barred from recovery because she was contributorily
negligent for her injuries.*fn3 Def.'s Mem. Supp. Mot.
Summ. J., ECF No. 27, at 14. On August 12, 2011, before filing an
opposition to the defendant's motion for summary judgment, the
plaintiff filed a motion in limine, asserting that the WMATA bus
driver's violation of applicable traffic regulations renders the
defendant negligent per se, and the defendant should therefore be
precluded from raising a contributory negligence defense.*fn4
Pl.'s Mem. Supp. Mot. Limine to Strike Defense of
Contributory Negligence ("Pl.'s Mot. Limine"), ECF No. 28, at 19.
On October 4, 2011, the plaintiff filed four additional motions in limine. Pl.'s Omnibus Mot. Limine, ECF No. 37. Two days later, on October 6, 2011, the parties filed their Joint Pre-
Trial Statement in which they raised objections to certain exhibits proposed by the opposite party. Joint Pre-Trial Statement, ECF No. 38. On October 6, 2011, WMATA also filed seven motions in limine. Def.'s Omnibus Mot. Limine, ECF No. 39. The Court held a pretrial conference on October 17, 2011, at which it heard argument on the pending motions, and allowed the parties to file supplemental briefs regarding the defendant's motions in limine to exclude the evidence of the defendant's internal investigation and termination proceedings against Carla Proctor, the driver of the WMATA bus involved in the accident.*fn5
As explained below, the defendant's motion for summary judgment is denied because numerous material facts remain disputed. Specifically, the parties dispute whether the plaintiff checked for oncoming traffic before crossing the street, whether the plaintiff would have been able to see the WMATA bus if she had looked for oncoming traffic, and whether the WMATA bus driver had the last clear chance to avoid the accident. Additionally, the plaintiff's motion in limine to preclude a contributory negligence defense is denied because the determination of whether the defendant was negligent per se rests on factual determinations that are properly reserved for the jury, and a defendant's violations of traffic regulations do not bar a contributory negligence defense. The parties' additional motions in limine, as well as their objections to proposed exhibits, are addressed below.
II.WMATA'S MOTION FOR SUMMARY JUDGMENT
The defendant moves for summary judgment on grounds that undisputed facts conclusively demonstrate that the plaintiff was contributorily negligent, which bars her from recovery in this case. As explained below, facts essential to a finding of the plaintiff's contributory negligence remain in dispute. The defendant's motion for summary judgment is therefore denied.
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" based upon the pleadings, depositions, and affidavits and other factual materials in the record. FED. R. CIV. P. 56(a), (c); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). The Court "need consider only the cited materials, but it may consider other materials in the record." FED. R. CIV. P. 56(c)(3). "The evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party." Talavera, 638 F.3d at 308 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)); Tao, 27 F.3d at 638. However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Talavera, 638 F.3d at 308 (citing Anderson, 477 U.S. at 252). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The defendant asserts that the plaintiff was contributorily negligent when she sustained her injuries and therefore should be barred from recovery because she entered the intersection without looking to her left and, as a result, failed to see the oncoming WMATA bus. As a general matter, "[i]ssues of contributory negligence, like issues of negligence, present factual questions for the trier of fact [u]nless the evidence is so clear and undisputed that fair-minded men can draw only one conclusion." Lyons v. Barrazotto, 667 A.2d 314, 322 (D.C. 1995) (internal citations omitted). "Only in the exceptional case is evidence so clear and unambiguous that contributory negligence should be found as a matter of law." Id. (quoting Washington v. A. & H. Garcias Trash Hauling, 584 A.2d 544, 547 (D.C. 1990)); see also Paraskevaides v. Four Seasons Wash., 292 F.3d 886, 893 (D.C. Cir. 2002) ("Only in exceptional cases will questions of negligence [and] contributory negligence . . . pass from the realm of fact to one of law," quoting Shu v. Basinger, 57 A.2d 295, 295-96 (D.C. 1948)); Hsieh v. Consol. Eng'g Servs., 569 F. Supp. 2d 159, 182-83 (D.D.C. 2008) ("Contributory negligence is virtually always a question of fact for the jury," quoting Andrews v. Wilkins, 934 F.2d 1267, 1272 (D.C. Cir. 1991)). In cases involving intersection collisions, "the issues of negligence and proximate cause will almost always be questions of fact to be decided by the jury." Washington Metro. Area Transit Auth. v. Jones, 443 A.2d 45, 49-50 (D.C. 1982) (en banc); see also Aqui v. Isaac, 342 A.2d 370, 372 (D.C. 1975) (court reversed judgment notwithstanding the verdict finding that "[a]utomobile collisions at street intersections nearly always present questions of fact. . . . Only in exceptional cases will questions of negligence, contributory negligence and proximate cause pass from the realm of fact to one of law."). Thus, in order to grant summary judgment, the defendant must demonstrate that undisputed evidence conclusively establishes that the plaintiff was negligent when entering the crosswalk. The Court concludes, however, that it does not. Moreover, even if evidence did establish the plaintiff's contributory negligence as a matter of law, summary judgment in favor of the defendant is not warranted because the plaintiff may recover, despite her own negligence, if a jury determines that the WMATA bus driver had the last clear chance of avoiding the accident.
1.Undisputed Facts Do Not Establish That the Plaintiff Was Contributorily Negligent
In the District of Columbia, "contributory negligence . . . is an affirmative defense in negligence cases and may operate as a complete bar to liability." Dennis v. Jones, 928 A.2d 672, 676 (D.C. 2007); see Burton v. United States, 668 F. Supp. 2d 86, 107 (D.D.C. 2009); Lee v. United States, 570 F. Supp. 2d 142, 155 (D.D.C. 1999) (citing Lynne v. District of Columbia, 734 A.2d 168, 172 (D.C. 1999). In the present case, the defendant argues that the plaintiff is contributorily negligent for her injuries because she "entered the intersection without looking and failed to exercise reasonable care by leaving the sidewalk without ascertaining whether traffic moving through the intersection was approaching." Def.'s Mem. Supp. Mot. Summ. J., ECF No. 27, at 11-12.
The law imposes a duty on pedestrians to exercise reasonable care for the protection of his or her own safety. Lyons, 667 A.2d at 322; see also O'Connor v. District of Columbia, 921 F. Supp. 5, 7 (D.D.C. 1996); Shonka v. Washington Metro. Area Transit Auth., No. 1:08-cv-47, slip. op. at 4 (E.D. Va. May 5, 2008). "In an intersectional collision case, a plaintiff may be held to be contributorily negligent as a matter of law if he purportedly looks, but fails to see what the evidence conclusively shows was there to be seen." Spain v. McNeal, 337 A.2d 507, 510 (D.C. 1975) (involving collision between two vehicles at an intersection); Aguehounde v. District of Columbia, No. 91-cv-9365, slip. op. at 36 (D.C. Super. Ct. Apr. 13, 1993) (citing Spain v. McNeal and finding plaintiff contributorily negligent as a matter of law because he did not stop or look before entering the street).*fn6 As the court in Spain explained, however, in order to "invoke [contributory negligence as a matter of law], it must appear as an uncontroverted fact that the other vehicle was within [the motorist's] range of vision at the time he claims to have looked." Spain, 337 A.2d at 510.
Based upon the record before the Court, it is far from uncontroverted that the WMATA bus was within the plaintiff's field of vision at the time when she could have looked to her left to check for traffic before entering the crosswalk. Specifically, at least two unresolved facts prevent a finding that the plaintiff's failure to look left makes her contributorily negligent as a matter of law. First, the record indicates that Ms. Salazar was standing to the plaintiff's left, the direction from which the WMATA bus was approaching, while the plaintiff was standing on curb and when they both stepped into the intersection. See Statement of Material Facts ¶ 3. It is therefore possible, as the plaintiff argues, that Ms. Salazar obstructed the plaintiff's view of oncoming traffic and of the bus. Pl.'s Opp'n Mot. Summ. J., ECF No. 30, at 13. The evidence in the record therefore does not conclusively establish that the oncoming WMATA bus was within the plaintiff's "field of vision." Second, one witness described the bus as "just a streak." Miller Report, at 00054. If the plaintiff looked to her left, the plaintiff may not have seen the approaching bus because of its speed, may have proceeded onto the crosswalk before the bus entered her field of vision, or may not have had an opportunity to step back to the safety of the curb given the speed at which the bus was travelling. See Pl.'s Opp'n Mot. Summ. J., ECF No. 30, at 13. All of these possibilities may properly be considered by a jury.
In support of its argument that summary judgment is warranted, the defendant relies primarily upon O'Connor v. District of Columbia, 921 F. Supp. 5 (D.D.C. 1996), and Aguehounde v. District of Columbia, No. 91-cv-9365, slip. op. (D.C. Super. Ct. Apr. 13, 1993). Both cases, however, are distinguishable from the one before the Court.
In O'Connor, the plaintiff sued the District of Columbia for negligent maintenance of a roadway after she stepped into an intersection to sidestep a puddle and fell attempting to avoid an oncoming vehicle. 921 F. Supp. at 6. The court held that the plaintiff's "failure even to make one glance to see whether traffic was coming before stepping out into a traffic lane, coupled with plaintiff's failure to observe whether the traffic light had turned red to stop [oncoming] traffic" rendered her contributorily negligent for her injuries. Id. at 7. Unlike the case before the Court, the plaintiff in O'Connor admitted that she did not know whether the traffic signal had changed from red to green before she proceeded into the street. Id. at 6. Indeed, "the pedestrian was only 'hoping' that the light would change." Pl.'s Opp'n Mot. Summ. J., ECF No. 30, at 14. Here, the plaintiff waited for the 'walk' signal before proceeding across the intersection in the crosswalk, and evidence does not conclusively establish that the plaintiff failed to look for an oncoming vehicle or, if she had looked, would have been able to see the bus or had sufficient time to step back to the safety of the curb. A reasonable juror could therefore conclude that the plaintiff exercised due car prior to the accident.
The defendant's reliance on Aguehounde is similarly inapposite. In that case, the plaintiff was struck by a car immediately upon stepping into a crosswalk. Aguehounde, No. 91-cv-9365, slip. op. at 27. The court found the plaintiff contributorily negligent for his injuries, stating that "[g]iven [plaintiff's] unobstructed view, there exists no doubt that had [the plaintiff] looked to his left just before he stepped, he would have seen the  car coming at him at a speed of 20 or 25 miles and [sic] hour." Id. at 28-29. In the present case, as explained above, it is not clear that the plaintiff had an unobstructed view of the intersection and could have seen the oncoming WMATA bus, or if she saw the bus, whether the plaintiff had time to step back to the safety of the curb, due to the speed at which the bus was travelling.
In sum, the record in this case does not conclusively establish that the plaintiff failed to exercise reasonable care when crossing the street. The parties dispute whether the plaintiff looked in the direction of the approaching WMATA bus before deciding to enter the crosswalk. Moreover, they dispute whether the plaintiff's view of the intersection was obstructed by Ms. Salazar, who was standing to the plaintiff's left and conceivably could have blocked the WMATA bus from the plaintiff's view. Finally, the parties dispute the speed at which the bus was traveling, and the bus' speed may have made it impossible for the plaintiff to return to the safety of the curb even if she had seen the bus approaching. These disputed factual questions, among others, must be resolved by a jury.
2.The Last Clear Chance Doctrine Precludes Summary Judgment
Even if the plaintiff were contributorily negligent, the plaintiff argues that summary judgment in the defendant's favor should be denied because she may still be able to recover pursuant to the last clear chance doctrine. Pl.'s Reply Opp'n Mot. Limine, ECF No. 35, at 12.
"Under the doctrine of last clear chance, a plaintiff may recover, despite his own contributory negligence, if he can demonstrate that 'the defendant had a superior opportunity to avoid the accident.'" Washington Metro. Area Transit Auth. v. Young, 731 A.2d 389, 394 (D.C. 1999) (citing Phillips v. D.C. Transit System, Inc., 198 A.2d 740, 741-42 (D.C. 1964)); see also Hall v. Carter, 825 A.2d 954, 958 (D.C. 2003) ("[T]he 'last clear chance' instruction means that, after both plaintiff and defendant negligently have created a situation dangerous to plaintiff, the defendant can be held liable nonetheless, after plaintiff no longer can save the situation, if the defendant still could have protected plaintiff from harm . . . but -- in a second negligent act or omission -- failed to do so.") (emphasis in original).
To prevail under this doctrine, the plaintiff must show that: "(1) the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) the plaintiff was oblivious to the danger, or unable to extricate [herself] from the position of danger; (3) the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiff's danger and of [her] obliviousness to it, or [her] inability to extricate [herself] from it; and (4) the defendant, with means available to [the defendant], could have avoided injuring the plaintiff after becoming aware of the danger and [the plaintiff's] inability to extricate [herself] from it, but failed to do so." Juvenalis v. District of Columbia, 955 A.2d 187, 191 n. 2 (D.C. 2008) (citing Hall v. Carter, 825 A.2d at 958); Evans v. Wash. Metro. Area Transit Auth., 674 F. Supp. 2d 175, 182 n.2 (D.D.C. 2009) (citing Queen v. Wash. Metro. Area Transit Auth., 842 F.2d 476, 481 (D.C. Cir. 1988)); Felton v. Wagner, 512 A.2d 291, 296 (D.C. 1986).
Here, as the plaintiff argues, a reasonable juror could conclude that the WMATA bus should have been aware of the danger of pedestrians in the crosswalk and should have stopped after seeing the plaintiff enter the intersection, particularly since it is undisputed that the plaintiff had a "walk" signal. See Miller Report, at 00053-54. Indeed, plaintiff's accident reconstruction expert stated during his deposition that if the WMATA bus were proceeding within the speed limit, the bus driver "more likely than not could have stopped at 25 miles an hour." Pl.'s Reply Opp'n Mot. Limine, Ex. C, ECF No. 35, David Stopper Dep. Tr. ("Stopper Dep.") 72, lines 2-7, July 8, 2011. This opinion is not refuted since WMATA's expert apparently could not render an opinion on whether the bus could have stopped if the bus were traveling within the speed limit.
Pl.'s Reply Opp'n Mot. Limine, Ex. D, ECF No. 35, David Plant Dep. Tr. ("Plant Dep.") 110, lines 4-9, Sept. 1, 2010. A reasonable juror could conclude, based on this testimony, that the WMATA bus driver could have stopped after seeing the plaintiff enter the intersection and therefore had the last clear chance to avoid the accident. See Washington Metro. Area Transit Auth. v. Jones, 443 A.2d 45, 50 (D.C. 1981) ("The jury must be allowed to weigh the credibility of the witnesses and resolve disputes as to speed and distances.") (en banc). If the jury determines that the defendant had the last clear chance to avoid the accident, the plaintiff's contributory negligence would not bar a judgment in her favor. The defendant's motion for summary judgment is therefore denied.
III.PLAINTIFF'S MOTION IN LIMINE TO PRECLUDE A CONTRIBUTORY NEGLIGENCE DEFENSE
The plaintiff has moved in limine to preclude the defendant from asserting at trial that the plaintiff was contributorily negligent. Pl.'s Mot. Limine, ECF No. 28. Specifically, the plaintiff contends that a contributory negligence defense is unavailable when the defendant is negligent per se for violating traffic regulations. Id. at 11. The defendant counters that violations of traffic regulations do not constitute negligence per se. The plaintiff further contends that the defendant's gross negligence overcomes the defense of contributory negligence, Pl.'s Opp'n Mot. Summ. J., ECF No. 30, at 21, a theory that the defendant contends is without any support in this jurisdiction. Def.'s Reply Mot. Summ. J., ECF No. 32, at 8-10.
The Court concludes that the defendant's alleged violations of traffic regulations may constitute negligence per se, but whether the defendant violated applicable traffic regulations is a matter for the jury to decide. Further, the Court holds that the defendant is not precluded from raising a contributory negligence defense where the defendant's negligence per se is triggered by violations of traffic regulations. Finally, the Court finds that plaintiff may not assert now a claim of gross negligence, which was contained in a count voluntarily dismissed by the plaintiff. Even if a claim of gross negligence were ...