United States District Court, District of Columbia
MEMORANDUM OPINION [DKT. #17]
RICHARD J. LEON, UNITED STATES DISTRICT JUDGE.
tripped and fell at her nephew's wedding reception,
seriously injuring herself. She filed a personal injury
lawsuit in the Superior Court of the District of Columbia,
alleging that the owner and operator of the reception venue
was liable for negligently failing to keep the premises in
reasonably safe condition. Defendant removed the action to
this Court. In managing this case, I set deadlines for,
inter alia, the timely designation of expert
witnesses. Plaintiff missed her deadline once, then after
having been granted a second chance, missed it again.
Presently before the Court is defendant's Motion for
Summary Judgment [Dkt. #17]. Defendant argues that plaintiffs
failure to timely designate an expert is dispositive because
D.C. tort-law requires expert testimony to establish the
standard of care applicable to this case. Upon consideration
of the pleadings, relevant law, and the entire record herein,
the Court will GRANT the Motion and enter judgment for
happy couple married in August 2015. To mark the joyous
occasion, they invited their family and friends to celebrate
at the St. Regis Hotel in Washington, D.C. Def.'s
Statement Mat. Facts ¶¶ 1-2 ("Def.'s
SMF") [Dkt. #17-1]; Pl.'s Statement Mat. Facts
¶¶ 1-2 ("Pl.'s SMF") [Dkt. #19].
Among the many guests was plaintiff Karyn Tripmacher, a
retired special-education teacher and the aunt of the groom.
Def.'s SMF ¶3; Pl.'s SMF ¶3. Unfortunately,
not all went well for Tripmacher that evening. At
approximately 11:00 p.m. she decided to leave the Astor
Ballroom. As she did, she tripped-and fell. Def.'s SMF
¶ 4; Pl.'s SMF ¶ 4. According to her
deposition, Tripmacher sustained serious injuries as a result
of her fall, including fractures to her finger, ribs, and
vertebrae, as well as other injuries requiring an emergency
hip replacement. See Pl.'s Opp'n to
Def.'s Mot. Summ. J. ("Opp'n") [Dkt. #19],
Ex. 1, Tr. of Karyn Tripmacher Dep. 43:13-44:5, 51:11-19
("Tripmacher Dep.") [Dkt. #19-1].
surprisingly, the precise details are in dispute. None of the
wedding guests or hotel staff witnessed Tripmacher's
fall. Def.'s SMF ¶¶ 7-9; Pl.'s SMF
¶¶ 7-9. Tripmacher believes that she tripped over a
temporary wheelchair ramp connecting the Astor Ballroom to
the Astor Terrace. Compl. ¶ 5 [Dkt. #1-2]. The ramp in
question was about five feet wide and about twenty-six inches
long. Opp'n, Ex. 4, Tr. of Oliver A. Beckford Dep.
15:14-18 ("Beckford Dep.") [Dkt. #19-1]. The
carpenter who built the ramp estimated that it was four or
five inches tall at its highest point and that its twenty-six
inch length gave the ramp an incline of thirty to forty
degrees. Id. at 15:19-16:1, 22:19-21.The ramp was
covered in red carpet similar to that covering the ballroom
floor. Id. at 20:5-21. Although the ramp did not
have handrails, its edges were marked with yellow tape about
one or two inches wide. Opp'n, Ex. 2, Decl. of John
Mircovich ("Mircovich Decl.") ¶¶ 10-11
[Dkt. #19-1]. Photographs in the record show that the ramp
was positioned in front of a set of double doors in a manner
that would enable a wheelchair to clear the single stair
between the Astor Ballroom and the Astor Terrace.
See Def.'s Mot. Summ. J., Ex. 1 [Dkt. #17-4];
Mircovich Decl, Ex. 1 [Dkt. #19-1, at 18]. Although
Tripmacher concedes that she did not see the ramp when she
tripped, Pl.'s SMF ¶ 6, according to her deposition
she "know[s] for a fact that it was the ramp" that
she tripped over because she "can't imagine [there]
was anything else on the floor." Tripmacher Dep.
39:2-40:12; see also Mircovich Decl. ¶ 15
("I observed nothing except the ramp that could have
caused my aunt to trip or slip and fall.").
also testified that the Astor Ballroom was "very
crowded" the night of the wedding reception and that the
tables in the ballroom "were so close together"
that movement between them was difficult. Tripmacher Dep.
81:9-16. In addition, she stated that the ballroom was dimly
lit. Id. at 31:6-17. John Mircovich, another guest
at the wedding and the husband of Tripmacher's niece,
submitted a sworn affidavit also attesting that "[t]he
ballroom was dimly lit." Mircovich Decl. ¶ 13. The
director of banqueting at the St. Regis Hotel, Hamid Azimi,
testified that the lights in the Astor Ballroom were dimmed
to approximately fifty percent of their full brightness
during the reception. Def.'s Reply Supp. Summ. J. [Dkt.
#20], Ex. 4, Tr. of Hamid Azimi Dep. 43:18-47:7 ("Azimi
Dep.") [Dkt. #20-4]. Tripmacher stated, when shown a
reference photo, that she believes the lights were set
"darker" than fifty percent. Tripmacher Dep.
December 22, 2015, Tripmacher filed suit in the Superior
Court of the District of Columbia, alleging that Starwood
Hotels & Resorts Worldwide, Inc. ("Starwood" or
"defendant"), the owner and operator of the St.
Regis Hotel, negligently breached its "duty to exercise
reasonable care under the circumstances to keep the premises
reasonably safe for persons lawfully upon the property,
" Compl. ¶ 9, and that, as a result of this breach,
Tripmacher experienced injuries entitling her to $2 million
in damages, plus costs and interests, id. ¶11.
Invoking this Court's diversity jurisdiction, Starwood
promptly removed the action here. See 28 U.S.C.
§§ 1332, 1441; Def.'s Pet. Removal ¶¶
5-6 [Dkt. #1-1].
March 7, 2016, upon joint motion of the parties, I entered a
scheduling order setting, inter alia, deadlines for
expert designations. Pursuant to the initial schedule,
Tripmacher's expert designations were due by June 1,
2016, and Starwood's by July 1, 2016. Tripmacher's
deadline came and went without an expert designation. Then,
on June 23, the parties jointly requested that I modify the
scheduling order such that plaintiffs expert designations
would be due August 1, 2016, and defendant's by September
1, 2016. Joint Mot. Extend Scheduling Order 2 [Dkt. #11]. I
granted the motion a few days later. Unfortunately for
Tripmacher, she failed to take advantage of this second
chance; August 1 came and went with no further activity on
the docket. On September 1, Starwood designated an orthopedic
surgeon as its expert witness. See Def.'s Rule
26(a)(2) Expert Designation [Dkt. #12]. One week later,
Tripmacher moved for leave to late-file an expert
designation, explaining that "due to an internal
scheduling error, the deadline to name expert witnesses of
August 1, 2016, did not make it onto the actual calendar for
the [p]laintiff, " and that she had not discovered the
error until August 29. Pl.'s Mot. Leave to Late-File Rule
26(a)(2) Expert Designation & Report ¶ 5
("Pl.'s Mot. to Late-File") [Dkt. #13].
Plaintiff did not explain why it took an additional ten days
after the discovery of her error to seek leave to late-file.
In any event, Starwood timely opposed the motion, and on
October 11, 2016, 1 denied Tripmacher's request for leave
filed the instant motion for summary judgment in December
2016. Briefing on the Motion was completed in January 2017,
and I took the Motion under advisement shortly thereafter.
judgment is appropriate when the pleadings and the record
demonstrate that "there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). "A fact is
material if it 'might affect the outcome of the suit
under the governing law, ' and a dispute about a material
fact is genuine 'if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'" Steele v. Schafer, 535 F.3d 689,
692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). The moving party bears
the initial burden of demonstrating the absence of a genuine
dispute of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). To defeat summary
judgment, the nonmoving party must "designate specific
facts showing there is a genuine issue for trial."
Id. at 324 (quotation marks omitted). In determining
whether there is a genuine dispute about material facts, the
court "must view the evidence 'in the light most
favorable to the nonmoving party and ... draw all reasonable
inferences in favor of the nonmoving party.'"
Grosdidier v. Broad. Bd. of Governors, Chairman, 709
F.3d 19, 23-24 (D.C. Cir. 2013) (quoting Talavera v.
Shah, 638 F.3d 303, 308 (D.C. Cir. 2011) (alteration in
original). Moreover, if the non-moving party "fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial, " summary
judgment may be granted. Celotex, 477 U.S. at 322.
pursues a negligence claim against Starwood. In the District
of Columbia, "[t]he elements of a cause of action for
negligence are a duty of care owed by the defendant to the
plaintiff, a breach of that duty by the defendant, and damage
to the interests of the plaintiff, proximately caused by the
breach." Woods v. District of Columbia, 63 A.3d
551, 553 (D.C. 2013) (quoting Taylor v. District of
Columbia, 116 A.2d 1208, 1214 (D.C.
2001)). "[T]he applicable standard for
determining whether an owner or occupier of land has
exercised the proper level of care to a person lawfully upon
his premises is reasonable care under all of the
circumstances." Night & Day Mgmt., LLC v.
Butler, 101 A.3d 1033, 1038 (D.C. 2014) (quoting
D.C. Hous. Auth. v. Pinkney, 970 A.2d 854, 866 (D.C.
2009)). D.C. courts often require expert testimony to prove
the standard of care. See Varner v. District of
Columbia, 891 A.2d 260, 267-68 (D.C. 2006) (collecting
cases). Where the subject of the alleged breach is "so
distinctly related to some science, profession, or occupation
as to be beyond the ken of the average lay juror, " the
plaintiff must produce expert testimony. Night & Day
Mgmt., 101 A.3d at 1039 (quoting Varner, 891
A.2d at 265). However, if the alleged negligence occurred in
a context "within the realm of common knowledge and
everyday experience, the plaintiff is not required to adduce
expert testimony." Id. at 1038-39 (quoting
Tolu v. Ayodeji, 945 A.2d 596, 601 (D.C. 2008)).
contends Tripmacher cannot carry her burden in this case
because she failed to designate an expert witness capable of
establishing the applicable standard of care and who can
opine as to whether that standard was breached when the St.
Regis Hotel placed the temporary wheelchair ramp in the Astor
Ballroom. Mem. Supp. Def.'s Mot. Summ. J. 5-9 [Dkt.
#17-2]. Tripmacher responds that no expert is required
because a lay jury is capable of assessing the "relative
dangerousness" of the ramp based upon their own
experience. Opp'n 7; see also Id. at 13
("Starwood's negligence consists of creating a
tripping hazard and failing to prevent invitees from falling
over it. This is not too convoluted or recondite for a lay
jury to understand."). She identifies several problems
that she believes to be within the ken of the average lay
juror. These include the specifications of the wheelchair
ramp itself, including its color, size, and lack of
handrails, as well as the number of people and the ...