United States District Court, District of Columbia
MARK C. KRIEGER, Plaintiff,
AMERICAN MAINTENANCE COMPANY, INC., Defendant.
OPINION AND ORDER
SEGAL HUVELLE United States District Judge
Mark Kreiger, a resident of the District of Colombia and
employee of the Hamilton restaurant, filed suit in the
District of Columbia Superior Court on January 3, 2017,
against defendant American Maintenance Co., a Virginia
corporation that provided after-hours cleaning services at
the Hamilton. (Compl. [ECF No. 2], at 1-2.) On March 3, 2017,
defendant removed the action to the United States District
Court for the District of Columbia, invoking diversity
jurisdiction under 28 U.S.C. § 1332. (See
Notice of Removal [ECF No. 1], at 3.)
the Court are defendant's Motion to Dismiss Count 2 of
the Complaint (Def.'s Mot. to Dismiss (“Def.'s
Mot.”) [ECF No. 6]), plaintiff's Memorandum in
Opposition (Pl.'s Mem. in Opp'n to Def.'s Mot. to
Dismiss (“Pl.'s Opp'n”) [ECF No. 11]),
and defendant's Reply (Def.'s Reply to Pl.'s Mem.
in Opp'n to Def.'s Mot. to Dismiss (“Def.'s
Reply”) [ECF No. 12]). For the reasons that follow,
defendant's motion will be denied.
two-count Complaint alleges that defendant failed to
“give warning and notice of treated and known slippery
walking surfaces” and failed to “furnish a safe
workplace” under D.C. Code § 32-808(a), and that
this caused plaintiff physical injury and other damages.
(Compl. at 5-6.) More specifically, plaintiff contends that,
after the Hamilton closed on January 18, 2015, he slipped and
fell after defendant washed the floor but did not put up a
“wet floor” or other caution sign. (Id.
at 3-5.) Count 1 is for “Negligence and Breach of
Industry Standards and Duties, ” and Count 2 is for
“Violation of Safe Workplace Act.” (Id.
has moved to dismiss Count 2. (Def.'s Mot. at 1.)
Defendant reasons that, because the Safe Workplace Act does
not create a private right of action but only imposes a
statutory duty of care, a violation of the Act would only be
evidence of negligence and should not be a separate cause of
action. (Id. at 1-2.) Plaintiff responds that
pleading the two theories of liability separately was
necessary to clarify that the defense of contributory
negligence could not bar plaintiff's cause of action
under the Safe Workplaces Act. (Pl.'s Opp'n at 3.)
The Court agrees with plaintiff that a claim of negligence
based on a violation of the Safe Workplace Act is distinct
from a common-law negligence theory of liability.
clear that the Safe Workplace Act sets a statutory duty of
care, and that a plaintiff must prove the other essential
elements of a negligence action to prevail on that theory of
liability. Velasquez v. Essex Condominium Assn. et
al., 759 A.2d 676, 681 (D.C. 2000). The D.C. Court of Appeals
has noted that “actions brought under the Safety Act
[are] analogous to negligence actions, ” at least for
purposes of evaluating whether a disclaimer is enforceable.
Brown v. 1301 K Street Ltd. Partnership, 31 A.3d
902, 907 (D.C. 2011). As the statement of the Court of
Appeals suggests, lawsuits premised on a violation of the
Workplace Safety Act are not identical to common-law
negligence actions, even if they are “analogous.”
are two important distinctions between plaintiff's
common-law negligence claim and his Safe Workplace Act
negligence claim. First, the duty of due care set forth by
the Safe Workplace Act applies more broadly than the
common-law duty of employers to provide safe workplaces.
Martin v. George Hyman Const. Co., 395 A.2d 63, 70
(D.C. 1978). Under D.C. Code § 32-808(a), “[e]very
employer shall furnish a place of employment which shall be
reasonably safe for employees . . . .” The statute
defines “employer” as every person or entity that
has “control or custody of any place of employment or
any employee.” D.C. Code § 32-802. Thus, if a
person or entity has control over the worksite, even if it
does not have control over the wage earner, the Safe
Workplace Act sets a statutory duty of care.
Velasquez, 759 A.2d at 680. Second, contributory
negligence (short of willful, wanton, or reckless conduct on
the part of the plaintiff) is not a defense to a negligence
action premised on a violation of the Safe Workplace Act.
Martin, 395 A.2d at 71. By contrast, a successful
showing of a plaintiff's contributory negligence is a
“complete bar to recovery” for common-law
negligence. Id. at 68 (citations omitted).
incorporating the allegations of Count 1 (i.e., the
essential elements of a common-law negligence action), Count
2 states a separate cause of action, for it claims a distinct
theory of liability with a distinct duty of care from Count
1. A jury would need to find different facts to hold
defendant liable under the two theories of liability, and a
jury could consider the contributory negligence of plaintiff
as a defense only to Count 1, not Count 2. It therefore makes
good sense to distinguish the two theories of liability by
organizing them under two separate counts of the Complaint.
aforementioned reasons, it is hereby ORDERED that
defendant's Motion to Dismiss Count 2 of the Complaint is
 28 U.S.C. § 1446(b)(1) provides
that “[t]he notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by
the defendant, through service or otherwise, of a copy of the
initial pleading . . . or within 30 days after the service of
summons upon the defendant.” Although it appears that
defendant filed its notice of removal more than 30 days after
receiving the complaint, plaintiff did not file a ...