United States District Court, District of Columbia
KENNETH BECKER, M.D., et ux. Plaintiffs,
JAMES LEDERER, et al. Defendants
ALAN KAY, UNITED STATES MAGISTRATE JUDGE
Pending before this Court is a Motion for Summary Judgment by Defendants James Lederer and Transportation, Inc. doing business as Red Top Cab (“Defs’ Mot. for Summ. J.”) and Plaintiff Kenneth Becker’s Motion for Partial Summary Judgment (“Pl.’s Mot. for Partial Summ. J.”.) Upon consideration of the Defendants’ Motion for Summary Judgment , Plaintiff’s Motion for Partial Summary Judgment , Plaintiff’s Memorandum of Points and Authorities In Opposition To Defendants’ Motion for Summary Judgment and Plaintiff’s Counterstatement of Material Facts , Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment , and Plaintiff’s Reply Memorandum of Points and Authorities to Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment , the Court finds that a genuine dispute of material facts precludes summary judgment in this matter. Accordingly, the Defendants’ Motion for Summary Judgment  shall be DENIED. Plaintiff’s Motion for Partial Summary Judgment  shall also be DENIED. An appropriate Order accompanies this Memorandum Opinion.
On January 12, 2015, Plaintiff (“Plaintiff” or “Dr. Becker”) filed a Complaint with the District Court to recover for injuries caused when a Red Top Cab struck him as he attempted to cross the street after exiting his vehicle near the 1500 block of 35th Street, N.W. (Pl.’s Complaint , ¶¶ 15-16.) On December 14, 2013, at approximately 9:00 p.m., Dr. Becker exited his vehicle and locked the driver’s door. He began “walking along his vehicle toward the rear of his car” when he was struck by the Red Top Cab driven by Defendant (“Defendant” or “Mr. Lederer”). (Id.)
Plaintiff contends that Mr. Lederer was driving at an excessive speed for the road conditions and was unable to avoid hitting Dr. Becker. (Id. ¶ 20(A).) Plaintiff claims he suffered “painful, very serious, and permanent injuries which required major surgery, and a long period of hospitalization and institutional care.” (Id. ¶ 24(A).) He asserts that the detrimental effect on his overall physical and emotional well-being and the need for additional surgery will extend into the future. (Id. ¶ 24(B-D).) Plaintiff seeks to recover $1 million of compensatory damages under Count I for common law negligence. (Id. ¶¶ 27-30.) Under Count II for negligence per se, Plaintiff seeks to recover $1 million of compensatory damages. (Id. ¶¶ 31-35.) Under Count III, loss of consortium, Plaintiff Nicole Becker seeks to recover $100, 000. (Id. ¶¶ 36-40.)
On January 20, 2015, Defendants filed their answer denying the allegations of negligence. (Defs’ Answer  at 2-4.) On March 23, 2015, the parties consented to proceeding before Magistrate Judge Alan Kay for all purposes. (Consent .) On August 27, 2015, this matter was assigned to the Court’s Alternative Dispute Resolution Program with joint agreement by the parties. (Order .)
On January 14, 2016, Defendants filed their Motion for Summary Judgment. (Defs’ Mot. for Summ. J. .) Mr. Lederer claims that he stopped at a stop sign on Q Street, proceeded through the intersection, past the opposite crosswalk and travelled approximately 100 feet before his vehicle collided with Dr. Becker’s left leg. (Defs’ Statement of Material Facts Not In Issue , ¶ 2.) At the time of the accident it was dark, raining, there was poor visibility, Plaintiff was wearing dark clothing, and Mr. Lederer was driving 5-10 miles per hour. (Id. ¶ 3.) Mr. Lederer claims that he did not see Dr. Becker until the point of collision because Dr. Becker was not in the crosswalk. (Id. ¶ 2.) Defendants assert that Plaintiff parked his vehicle on the west side of 35th Street, southbound, 100 feet south of the intersection and the crosswalk, and attempted to walk in an easterly direction across 35th Street to his home on 34th Street. (Id. ¶ 4.)
Defendants argue that the Plaintiff is contributorily negligent and barred from recovery in the District of Columbia, and the Plaintiff has not presented any evidence of Defendants’ negligence. (Defs’ Mem. of P. & A.  at 9.) According to Defendants, Plaintiff admitted that he was not in the crosswalk and stepped into the travel portion of the roadway without seeing the taxicab. (Id.) Further, Defendants contend that there is “no evidence of negligence, no evidence of speed, inattention, distraction or impairment regarding the defendant’s actions.” (Id.)
Plaintiff counters that he has consistently “provided sworn statements that he was in the crosswalk.” (Pl.’s Mem. of P. &A. in Opp’n to Defs’ Mot. for Summ. J. and Pl.’s Counterstatement of Material Facts  at 3.) Further, Plaintiff claims that there is nothing in Defendants’ statements that supports the proposition that Mr. Lederer drove 100 feet past the crosswalk before striking plaintiff. (Id.) In his deposition, Mr. Lederer stated that he did not know precisely how far past the crosswalk he had driven before striking Plaintiff. (Id.) Moreover, Mr. Lederer did not know how fast he was driving. In his deposition, Mr. Lederer states that he may have been driving between 10 to 15 miles an hour, but he also states he was simply driving below the speed limit. (Id. at 4.) The range of speeds provided in Mr. Lederer’s deposition is somewhere between 5 and 25 miles an hour. (Id. at 4.)
Plaintiff filed a Motion for Partial Summary Judgement with respect to liability only on Counts I and II of the Complaint. (Pl.’s Mot. for Partial Summ. J. .) Plaintiff argues that he was struck while in a crosswalk and that Mr. Lederer admitted that Dr. Becker was in the crosswalk during his deposition. (Pl.’s Mem. of P. & A. in Support of Mot. for Partial Summ. J. [21-1] at 2.) Plaintiff notes that Mr. Lederer filed an errata sheet five months after the deposition transcript was available that would change his testimony to insert “not” before the statement that Dr. Becker was in the crosswalk. (Id.) Plaintiff claims that Defendants’ effort to change the deposition transcript is barred under Fed.R.Civ.P. 30, because the request exceeds the 30 day limitation on review of the transcript. (Id. at 8-9.) Without a change to the deposition, Plaintiff argues that the record indicates that Dr. Becker was in the crosswalk when he was struck. (Id.) Moreover, Plaintiff argues that “[e]ven if Dr. Becker’s conduct had been egregious (which Defendants have never claimed), he would still be protected under the law in the District of Columbia based on the last clear chance doctrine. (Id. at 3) (citing Juvenalis v. District of Columbia, 955 A.2d 187 (D.C. 2008); Long v. Mercer, 125 A.2d 685 (D.C. 1956); Mahnke v. Washington Metro Area Transit Auth., 821 F.Supp.2d 125 (D.D.C. 2011); Washington Metro. Area Transit Auth. v. Young, 731 A.2d 389 (D.C. 1999)).
In their reply, Defendants clarify that the counsel for Mr. Lederer waived the reading of Mr. Lederer’s deposition. (Defs’ Opp’n to Pl.’s Mot. for Partial Summ. J.  at 7.) On October 22, 2015, the transcription error came to light during the Mediation Conference. (Id.) Within five days, Defendants obtained an affidavit from the court reporter which reflects that Mr. Lederer had stated that, “he’s not in the crosswalk” during deposition. (Id.) According to Defendants, the “transcription error was confirmed as an error by affidavit of the court reporter after checking stenographic notes and listening to the backup tape.” (Id.)
II. LEGAL STANDARD
A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and affidavits demonstrate that there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). 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 (1986). 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 (1986). 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 ...