United States District Court, District of Columbia
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE.
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") 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.
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.
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.
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.
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.
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]. 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; 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.
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"). 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. ¶¶
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
Since the Court will dismiss the case on limitations grounds,
it need not address the merits of the claim.
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.
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.
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 ...