PATRICIA A. BELL, Plaintiff,
ELITE BUILDERS and HVAC INC., et al., Defendants.
AMY BERMAN JACKSON United States District Judge.
Plaintiff Patricia A. Bell has filed a series of related and overlapping complaints, in multiple courts, all arising out of the renovation of her home in 2009. In what began as a simple negligence action, she is now suing her contractor, Elite Builders and HVAC, Inc., and several of its employees, agents, and officers, for negligence, breach of fiduciary duty, fraud, constructive/equitable trust, breach of an implied duty of good workmanship, breach of contract, and improper licensure. Defendants’ dispositive motion on the single claim that comprised the original complaint is currently before the Court.
Plaintiff alleges that when the workers in her house covered the kitchen floor with a drop cloth, they negligently created a “dangerous and defective condition” that caused her to slip and fall and sustain “severe, painful, and permanent injuries.” Compl. [Dkt. # 1] ¶¶ 10–11. Defendants have moved for summary judgment on the personal injury claim, asserting the defenses of contributory negligence and assumption of the risk. After considering the parties’ pleadings, the Court finds that plaintiff is barred from recovering for negligence as a matter of law because she assumed the risk. Therefore, the Court will grant defendants’ motion for summary judgment on that count.
In December of 2008, plaintiff Patricia A. Bell hired defendants to complete renovations of both the exterior and interior of her home, including the kitchen. Compl. ¶ 3. Defendants commenced work in February of 2009, and plaintiff elected to remain in the house during the construction. Compl. ¶ 4; Pl.’s Dep., Ex. 1 to Defs.’ Mot. for Summ. J. [Dkt. # 21-1] at 18.
On the morning of May 2, 2009 – about two and a half months into the renovation – plaintiff heard a noise in her backyard from her second floor bedroom. Pl.’s Dep. at 22–23. To determine the source of the noise, she went down the stairs, turned on the lights, and walked through the kitchen to look out the sliding glass door into her backyard. Pl.’s Dep. at 23. Plaintiff observed several possums in the backyard and decided to retrieve her camera from the living room to take photographs of them. Id. She made the trip, returned to the kitchen, and opened the sliding glass door. Id. She then leaned out the door to photograph the animals while standing on the drop cloth that covered the floor. Id.
Plaintiff states that while she was leaning out of the door, her “left ankle got twisted up in [a] drop cloth, and [she] fell out the back door onto [her] patio.” Id. at 24. She alleges that as a result of this fall she suffered “severe, painful, and permanent injuries.” Compl. ¶ 11. It is not disputed that defendants had placed the drop cloths in plaintiff’s kitchen several days before her fall, and that plaintiff knew they were there. Pl.’s Dep. at 25–26; see also Pl.’s Aff., Ex. to Pl.’s Supplemental Opp. to Defs.’ Mot. for Summ. J. [Dkt. # 39-1] ¶ 14. These are the facts that underlie the motion before the Court.
The dispute between the plaintiff and her contractor has spawned a succession of legal actions that address not only the drop cloths but the financial relationship between the parties:
• On April 26, 2012, plaintiff filed a personal injury negligence action alleging that defendants “breached the duties they owed to the Plaintiff by causing the dangerous and defective condition to exist upon her premises and failing to remedy such dangerous and defective condition, ” and that as a “direct and proximate result” of this breach, plaintiff was injured. Compl. ¶¶ 10-11.
• On November 13, 2012, defendants filed the instant motion for summary judgment, asserting that plaintiff is barred from recovering on her negligence claim as a matter of law because she was contributorily negligent and she assumed the risk. Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”) [Dkt. # 21] ¶¶ 2-3. Plaintiff opposed the motion. Pl.’s Opp. to Defs.’ Mot. for Summ. J. (“Pl.’s Opp.”) [Dkt. # 22] at 6.
• On January 7, 2013, plaintiff moved to amend her complaint, reasserting the negligence claim and adding claims of breach of fiduciary duty and fraud. Pl.’s Mot. to Amend Compl. [Dkt. # 29] ¶¶ 29-40. Defendants opposed this motion. Defs.’ Opp. to Pl.’s Mot. to Amend Compl. [Dkt. # 30].
• On February 13, 2013, plaintiff filed a complaint in the Superior Court of the District of Columbia based upon the same set of facts and against almost identical defendants, alleging negligence, breach of fiduciary duty, fraud, constructive/equitable trust, breach of an implied duty of good workmanship, breach of contract, and improper licensure. Bell v. Elite Builders & HVAC, Inc., Civil Action No. 1271-13 (D.C. Super. Ct. filed Feb. 13, 2013), Ex. 1 to Defs.’ Opp. to Pl.’s Mot. for Leave to Serve 2d Am. Compl. [Dkt. # 36-1].
•On March 12, 2013, plaintiff again moved to amend her complaint in this Court to assert two additional claims: constructive/equitable trust and a breach of an implied warranty of good workmanship. Proposed 2d Am. Compl. ¶¶ 41-47. Defendants also opposed this motion. Defs.’ Opp. to Pl.’s Mot. to Serve 2d Am. Compl. [Dkt. # 36].
• On March 14, 2013, one of the defendants filed a motion to dismiss or, in the alternative, for summary judgment in D.C. Superior Court. Prelim. Mot. to Dismiss or, in the alternative, for Summ. J., Bell v. Elite Builders & ...