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Gardel v. SK&A Structural Engineers PLLC

United States District Court, District of Columbia

December 21, 2017




         On September 11, 2012, plaintiff Fabrice Gardel was filming a documentary outside of a building located at 1440 New York Avenue. Am. Compl. [Dkt. # 31] ¶¶ 1, 11. He leaned back against a chain linking two bollards together, and a 200-pound bollard fell on his leg and fractured it. Id. ¶¶ 4, 14-19. He has brought this action against defendants SK&A Structural Engineers, PLLC ("SK&A")[1] and Concrete Protection & Restoration, Inc. ("CPR"), alleging that they were grossly negligent when they failed to secure the bollards to the ground. Id. ¶¶ 38-41.

         Both defendants have moved to dismiss plaintiffs single-count complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that the action is barred by the applicable statute of limitations, or in the alternative, that plaintiff has failed to state a claim for gross negligence. Mot. of SK&A to Dismiss Am. Compl. [Dkt. #33] ("SK&A Mot."); Mot. to Dismiss Am. Compl. [Dkt. # 36] ("CPR Mot."). Because plaintiff filed his amended complaint over two years after the expiration of the three-year statute of limitations, the Court will grant defendants' motions. This holding does not mean that plaintiff was not injured, and it is not a finding on the question of whether defendants bear responsibility for the dangerous situation alleged in the complaint. Notwithstanding the pain and the ongoing inconvenience plaintiff has suffered, the Court is required to follow the law that governs when a lawsuit must be filed.


         Plaintiff, a journalist and citizen of France, was in Washington D.C. with his cameraman on assignment filming a documentary. Am. Compl. ¶ 11. They decided to take a video of the window dressing in the White House Gift Store. Id. ¶ 12. Large bollards, linked by chains, had been placed along the sidewalk across the street from the store to prevent taxis from stopping there to pickup or drop off patrons. Id. ¶ 3-4, 15.

         On September 11, 2012, while plaintiff searched for the best angle to film the window, he leaned back against one of the chains and, as he puts it, he felt it "release[] all resistance." Am. Compl. ¶ 14. As the top of one of the bollards tilted towards the street, the chain gave way and plaintiff'lost his balance and [fell] backward with all his weight on the chain." Id. ¶ 16. Plaintiffs body pulled on the chain, causing the 200 pound bollard to fall onto his left leg. Id. ¶ 17.

         Plaintiff was immediately transported to George Washington Hospital and diagnosed with an open fracture of his left tibia. Am. Compl. ¶¶ 18-19. A few days later, he was repatriated to France. Id. ¶ 20. Plaintiff alleges that he developed an ulcer on his left leg which did not heal until December 2012, leaving a scar and "permanent and substantial muscular atrophy in his left leg." Id. ¶¶ 21-22. He claims that he has not regained full mobility in the leg and that he attends physical therapy several times a week. Id. ¶ 23. Plaintiff alleges that he has incurred $58, 580.66 in medical bills and that he has lost income in excess of $80, 028 due to his inability to continue work as a producer of television documentaries, a profession which requires "physical mobility and capacity that he has been unable to retrieve." Id. ¶¶ 24, 28-35. Plaintiff claims that the pain from his injury has caused him to stop participating in physical activities, and that it has "substantially deteriorated his relationship with his wife and his two young children." Id. f 36. He also alleges that, as a result of the accident, he has been treated for depression since December 2012. Id. ¶ 37.

         Plaintiff initially filed a complaint on August 21, 2015 against Clarion Partners, LLC, based on an allegation that it was the manager of the 1440 New York Avenue building. See generally Compl. [Dkt. # 1]. Clarion Partners represented that it did not own or manage the property at the time of the accident, so plaintiff substituted 1440 New York Avenue Corporation, the owner of the property at the time, as the defendant. See Consent Substitution of Party [Dkt. # 5].[2] During the course of discovery, plaintiff learned that SK&A and CPR were the parties responsible for the bollard installation portion of a renovation project at the property, and that the renovation was performed under the auspices of a permit issued by the District of Columbia. Pl.'s Mot. to Join Additional Parties [Dkt. # 28] ("Pl.'s Mot. to Amend") at 1-2;[3] see also Am. Compl. ¶ 1. Plaintiff entered into a stipulation of dismissal with 1440 New York Avenue Corporation and sought leave of Court to substitute SK&A and CPR as the proper defendants. Pl.'s Mot. to Amend at 2. On February 27, 2017, the Court granted plaintiffs motion, and the operative complaint took effect the next day. See Min. Order (Feb. 27, 2017); see also Am. Compl.

         Plaintiff s amended complaint alleges that in 2010, "SK&A was responsible for overseeing the renovation work at 1440 New York Avenue N.W. . . . that was executed by CPR pursuant to a permit issued by the Government of the District of Columbia." Am. Compl. ¶ 1. Defendants had to "make sure that all work would be done in accordance with the Permit, " which required the bollards "to be attached to the ground through four bolts anchored into the sidewalk concrete" to prevent them from falling. Id. ¶¶ 2, 5. The permit included drawings that depicted how to attach the bollards to the ground. See id; see also Ex. 2 to Pl.'s Opp. to Def.'s Mot. for Summ. J. [Dkt. #21-2] ("Permit").[4] Plaintiff claims that defendants knew that the bollards were not bolted into the ground properly, and that they failed to notify the city inspector. Am. Compl. ¶¶ 6-7. He also alleges that before the final inspection of the renovations, SK&A "instructed CPR to place the bollards in a straight line and caulk the perimeter of the bollards that touches the sidewalk" instead of bolting them down, and that "CPR complied with the instruction." Id. ¶¶ 8-9. As a result, the city inspector failed to discover that the bollards had not been properly installed as required by the permit. Id. ¶ 10. The complaint alleges that defendants were grossly negligent when installing the bollards, and that their negligence resulted in serious bodily harm to plaintiff. See Id. ¶¶ 38-41.

         Both defendants moved to dismiss the complaint with prejudice, arguing that the action is barred by the three-year statute of limitations or, in the alternative, that it should be dismissed for failing to state a claim. See SK&A Mot.; Mem. of P. & A. [Dkt. # 33-1] ("SK&A Mem."); CPR Mot.; Mem. of P. & A. [Dkt. # 36-1] ("CPRMem."). Plaintiff argues that the statute of limitations did not begin to run against defendants until he learned of their identities and wrongdoing through discovery, and he also maintains that the amended complaint includes sufficient facts to support a claim of gross negligence. See Pl.'s Opp. to SK&A Mot. [Dkt. # 35] ("Pl.'s SK&A Opp.") at 2-3; Pl.'s Opp. to CPR Mot. [Dkt. # 39] ("Pl.'s CPR Opp.") at 2-4.[5] Since the Court will dismiss the case on limitations grounds, it need not address the merits of the claim.


         "To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). InIqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, " and "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 678-79.

         A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, citing Twombly, 550 U.S. at 556. "The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id., quoting Twombly, 550 U.S. at 556. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action, " id, quoting Twombly, 550 U.S. at 555, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id., citing Twombly, 550 U.S. at 555.

         When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe a complaint liberally in the plaintiffs favor, and it should grant the plaintiff "the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff s legal conclusions. See id.; see also Browning v. Clinton,292 F.3d 235, 242 (D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by ...

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