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Stehn v. Cody

United States District Court, District Circuit

August 26, 2013



COLLEEN KOLLAR-KOTELLY, United States District Judge

This action arises from injuries Plaintiff claims she sustained when the Defendant’s vehicle struck her at a crosswalk. Presently before the Court is Plaintiff’s [21] motion for summary judgment on the issue of liability. Upon careful consideration of the parties’ submissions[1], the applicable authorities, and the record as a whole, the Court concludes that facts essential to a finding that Plaintiff was not contributorily negligent remain in dispute. Accordingly, because Plaintiff’s contributory negligence is a dispositive issue under the governing law of the District of Columbia, the Court shall DENY Plaintiff’s motion for summary judgment.


The Court begins its discussion of the facts with a brief word regarding Local Civil Rule 7(h)(1), which requires that a party submitting a motion for summary judgment attach a statement of material facts as to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement. See LCvR 7(h)(1). The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts which the party contends are at issue and thus require litigation. See id. Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. Id. As the District of Columbia Circuit has emphasized, “[Local Civil Rule 7(h)(1)] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)).

Here, Defendant’s Statement of Material Facts fails almost entirely to conform with Local Civil Rule 7(h) as well as the [18] Scheduling and Procedures Order issued in this case, which reminds the parties of the importance of compliance with this rule. As an initial matter, Defendant has not responded to each paragraph in Plaintiff’s Statement of Material Facts indicating whether the paragraph is admitted or denied. Moreover, Defendant’s statement of additional facts is not presented in “consecutively numbered paragraphs at the end of [his] responsive statement of facts.” Defendant’s failure to present his statement in this way has made it more difficult for the Court to determine which facts are in dispute. Nevertheless, Defendant’s statement of facts and his supporting memorandum of law do, in their own way, “set[] forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated” with “references to the parts of the record relied on.” LCvR 7(h). To the extent Defendant’s statement and supporting brief fail to contest facts in Plaintiff’s statement of facts, however, the Court will “assume that the facts identified by the [Plaintiff] in [his] statement of material facts are admitted.” Id.

Having addressed the deficiencies of Defendant’s statement of facts, the Court will proceed to the facts of this case as laid out in the record. On June 11, 2008, at approximately 5:45 p.m., Plaintiff Isabel Stehn was crossing Pennsylvania Avenue at the intersection of Pennsylvania Avenue and 19th Street in Northwest Washington, D.C. Pl.’s Stmt. ¶ 1; Def.’s Stmt. ¶¶ 1-4. The crosswalk at this intersection is governed by a pedestrian walking signal, which informs pedestrians when they can safely begin to cross the street. Pl.’s Stmt. ¶¶ 2-4; Def.’s Stmt. ¶ 15. This pedestrian signal displays a timed countdown, which lasts for twenty-five seconds. Pl.’s Stmt. ¶ 3; Pl.’s Mot, Ex. D (Video and Photographs of Intersection). For seven seconds (until the timed countdown displays eighteen), the pedestrian signal also displays a flashing white graphic of a walking pedestrian, indicating that it is safe for pedestrians to begin crossing the intersection. Pl.’s Stmt. at ¶¶ 4, 16; Pl.’s Mot., Ex. D; Pl.’s Mot., Ex. H (Traffic Code Provisions), D.C. Code § 50-2201.28(b). Once the timed countdown reaches eighteen seconds, the white graphic of a walking pedestrian changes to display a flashing orange hand, indicating that pedestrians should no longer begin crossing the intersection. Id. However, those pedestrians who have already begun walking across the intersection continue to have the right-of-way to finish their crossing during these remaining eighteen seconds of the twenty-five second countdown. Id. Once the twenty-five second countdown reaches zero, the display changes from a flashing orange hand to a solid orange hand. At this point, no numbers are displayed. Pl.’s Mot., Ex. D.

As Plaintiff proceeded through the crosswalk, she was struck by a car driven by Defendant, who was making a left turn on a green light onto Pennsylvania Avenue. Pl.’s Stmt. ¶¶ 5, 13. According to Defendant’s testimony, prior to turning, he looked at the crosswalk and did not see pedestrians crossing the street. Def.’s Stmt. ¶ 11. Defendant also testified that at the time he decided to turn onto Pennsylvania Avenue, the countdown on the pedestrian signal had reached five seconds, a point at which the flashing orange hand signal would have been displayed for thirteen seconds. Pl.’s Stmt. ¶ 21; Def.’s Stmt. ¶ 16. Plaintiff does not dispute this latter testimony. Pl.’s Resp. Stmt. ¶ 11. After Plaintiff was taken away in an ambulance, Defendant was ticketed at the scene of the accident by a police officer for “Failure to Yield Right of Way to a Pedestrian.” Pl.’s Stmt. ¶¶ 8, 23-24. Defendant ultimately paid the fine required by this ticket. Id. at ¶ 25-26.


Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and [that she] . . . is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be “genuine, ” meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record—including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence—in support of her position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass’n of Flight Attendants–CWA, AFL–CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact, ” the district court may “consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e).

When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in her favor. Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251–52. In this regard, the non-movant must “do more than simply show that there is some metaphysical doubt as to the material facts, ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50 (internal citations omitted).


To prevail on her motion for summary judgment as to liability, Plaintiff must establish that Defendant was negligent as a matter of law. Furthermore, because “[t]he District of Columbia is one of the few jurisdictions in which the claimant’s contributory negligence can act as a complete defense to the defendant’s liability for negligence, ” Jarrett v. Woodward Bros., Inc., 751 A.2d 972, 985 (D.C. 2000), Plaintiff must also demonstrate the absence of a genuine issue of material fact as to her own contributory negligence. See Liberty Lobby, 477 U.S. at 248 (“disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”).

Issues of negligence and contributory negligence are rarely appropriate for summary judgment. As courts in the District of Columbia have repeatedly noted, “[o]nly in exceptional cases will questions of negligence [and] contributory negligence . . . pass from the realm of fact to one of law.” Paraskevaides v. Four Seasons Wash., 292 F.3d 886, 893 (D.C. Cir. 2002) (quoting Shu v. Basinger, 57 A.2d 295, 295-96 (D.C. 1948)); see also Lyons v. Barrazotto, 667 A.2d 314, 322 (D.C. 1995) (“[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.”) (internal citations omitted). This is no less true in tort claims involving car accidents, as “[a]utomobile collisions at street intersections nearly always present questions of fact . . . Only in exceptional cases will questions of negligence, contributory negligence, ...

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