Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Walen v. United States

United States District Court, District of Columbia

September 9, 2019

MARY LOU WALEN, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.



         The plaintiff, Mary Lou Walen, brought this suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2674 et seq., and District of Columbia law against the United States and the District of Columbia (the “District”) to recover for serious injuries she sustained when a tree limb fell on her as she walked along Connecticut Avenue, a major pedestrian artery in Northwest Washington. See Compl. ¶ ¶ 1-2, 7-8, ECF No. 1. On the day of the plaintiff's injury, Hurricane Sandy (“Sandy”) was affecting weather conditions in the District. The plaintiff's complaint alleges that the defendants owed a duty to maintain and inspect the trees overlooking the relevant stretch of Connecticut Avenue, a bridge crossing the Klingle Valley, a wooded depression in Rock Creek Park between the densely populated neighborhoods of Woodley Park and Cleveland Park. See Id. ¶¶ 19-20, 47-49. She also argues that the defendants' breaches of those duties-and not the storm-caused her injuries. See Id. ¶¶ 21, 50. She seeks $5, 000, 000 in compensatory damages, plus reasonable attorneys' fees and costs. See Id. at 8, 13. Pending are the United States' and District's motions for summary judgment. See D.C.'s Mot. Summ. J. (“D.C.'s Mot.”), ECF No. 43; U.S.'s Mot. Summ. J. (“U.S.'s Mot.”), ECF No. 47. For the reasons that follow, both motions are denied.

         I. BACKGROUND

         The factual and procedural background relevant to resolving the pending motions is summarized below.

         A. Factual Background

         A tree limb fell on the plaintiff on October 29, 2012, at about 3:15 p.m. as she walked on the sidewalk across the Connecticut Avenue Bridge (“the Bridge”), the portion of Connecticut Avenue that spans the Klingle Valley. See United States' Statement of Material Facts Not in Dispute (“U.S.'s SMF”) ¶¶ 1-2, ECF No. 47-1, Defendant District of Columbia's Statement of Material Facts Not in Dispute (“D.C.'s SMF”) ¶ 17, ECF No. 43-1; Compl. ¶¶ 6-9.[1] She was headed to pick up prescriptions at a pharmacy. See U.S.'s Mot., Ex. H, Dep. of Mary Lou Walen (“Pl.'s Dep.”) at 33:1 to 33:6, ECF No. 47-10. The plaintiff has lost her memory of the incident, see id., but another person walking on the Bridge at the time “heard a loud crashing sound, ” “turned toward the sound . . . [, ] noticed that a tree branch had fallen, ” and saw “a few people . . . spinning toward the southwest side of the bridge.” Pl.'s D.C. Opp'n, Ex. H, Declaration of Eric Kimbuende (“Kimbuende Decl.”) ¶ 4, ECF No. 49-7; see also Pl.'s Mem. Opp.'n Def. U.S.'s Mot. Summ. J. (“Pl.'s U.S. Opp'n”), Ex. D, Kimbuende Decl. ¶ 4, ECF No. 50-3. “Upon reaching them, ” the witness, Eric Kimbuende, “noticed that a woman had been struck by the branch.” Id.

         The Metropolitan Police Department (“MPD”) arrived shortly thereafter, along with emergency medical responders. See U.S.'s Mot., Ex. D, Metropolitan Police Dep't, Police Report (“MPD Report”) at 2, ECF No. 47-6. The MPD report of the incident stated that the plaintiff “was on the public sidewalk on the west side of the 3200 block of Connecticut [Avenue] N.W. when she was struck by falling tree limb. When the [responding officer] arrived on the scene, he . . . observed fallen tree limb debris on and around [plaintiff].” Id. The plaintiff was transported to George Washington University Hospital “in critical condition” and underwent “emergency surgery.” Id.

         “[T]rees under the maintenance jurisdiction of both” the National Park Service (“NPS”), a federal agency, and the District overhang the Bridge. U.S.'s SMF ¶ 3 (citing U.S.'s Mot., Ex. G, Dep. of Munevver Ertem (“Ertem Dep.”) at 9:5 to 10:11, ECF No. 47-9); see also Pl.'s Mem. Opp.'n Def. D.C.'s Mot. Summ. J. (“Pl.'s D.C. Opp'n”), Ex. A., Ertem Dep. 9:5 to 10:11, ECF No. 49-3. NPS maintains the trees in Klingle Valley because the Valley is part of a national park, Rock Creek Park. U.S.'s SMF ¶ 2. A former D.C. Department of Transportation (“DDOT”) road (now a trail) runs through the Valley, and the District shares with NPS jurisdiction over the trees growing in the now-eroded road and in the road's fifty-foot right of way. Ertem Dep., at 9:5 to 10:11, ECF No. 47-9 and ECF No. 49-3. DDOT does not perform routine inspections of trees in the Klingle Valley, relying instead on resident reports of obtrusive or hazardous trees to trigger inspections and maintenance. See D.C.'s Mot., Ex. G., Ertem Dep., at 12:3 to 13:7, 16, ECF No. 43-1. NPS has protocols for routine tree inspections. See Pl.'s D.C. Opp'n, Ex. F, Email from Tara Morrison, Superintendent, Rock Creek Park, to Richard Steacy, Advisory Neighborhood Commission (Nov. 20, 2012) at 5, ECF No. 49-3; U.S.'s Mot., Ex. F, Deposition of Donald Kirk (“Kirk Dep.”) at 21:3 to 24:24, ECF No. 47-8 (describing how NPS prioritizes tree maintenance). In the pending motions, NPS's protocols are less at issue than the District's.

         A photograph of the Connecticut Avenue Bridge taken two days after the plaintiff was injured, on October 31, 2012, by Diana Bramble, NPS's supervisory horticulturalist for Rock Creek Park, shows a several-foot-long pile of tree debris spanning half the width of the sidewalk. See D.C.'s Mot., Ex. H, ECF No. 43-1. Visible atop the pile of debris is a red umbrella, which the plaintiff has identified as her umbrella. Pl.'s D.C. Opp'n, Ex. G, Affidavit of Mary Lou Walen (“Pl.'s Aff.”) ¶ 7, ECF No. 49-3; see also Pl.'s U.S. Opp'n, Ex. E, Pl.'s Aff. ¶ 7, ECF No. 50-3. Bramble also photographed a tree that had been uprooted at its base on the floor of the Klingle Valley, beneath the Bridge. See D.C.'s Mot., Ex. I, ECF No. 1. Bramble testified that she was “of the opinion that the debris on the bridge could possibly be from the large tree that fell, ” but she could not form a definitive opinion. D.C.'s Mot., Ex. B, Dep. of Diana Bramble (“Bramble Dep.”) at 83:14 to 83:16. Kimbuende, the witness, attached to his declaration an image of a tree immediately next to the bridge; the tree is missing a branch, and Kimbuende states “it appears that the tree from which the branch fell is depicted . . . in the image.” Kimbuende Decl. at ¶ 9.

         The day of the plaintiff's injury, Hurricane Sandy was affecting weather conditions in the District. See D.C. SMF ¶¶ 1-10; U.S.'s SMF ¶¶ 7-16, 18; U.S.'s Mot., Ex. A, Nat'l Weather Serv. Nat'l Hurricane Ctr., Tropical Cyclone Report Hurricane Sandy, AL12012, at 3-4, ECF No. 47-3 (describing Sandy's path on October 29); Pl.'s D.C. Opp'n, Ex. C., Nat'l Hurricane Ctr., Sandy Graphics Archive, ECF No. 49-3 (showing Sandy's location 216 miles from D.C. at 2:00 p.m. on October 29); Pl.'s U.S. Opp'n, Ex. B, Nat'l Hurricane Ctr., Sandy Graphics Archive, ECF No. 50-3 (same as previous);[2] Pl.'s D.C. Opp'n, Ex. E, Thomas E. Downs, Meteorological Assessment Report (“Downs Report”) at 2-4, ECF No. 49-3 (“Hurricane Sandy was approaching the East Coast of the United states on October 29, 2012.”); see also D.C.'s Mot., Ex. L, Downs Report at 2-4, ECF No. 43-1 (same); Pl.'s U.S. Opp'n, Ex. A, Downs Report, ECF No. 50-3 (same). The MPD report noted the weather conditions on the Bridge at the time of the police response as “heavy rain and wind.” U.S.'s SMF ¶ 20 (citing MPD Report). The parties dispute the precise weather conditions on the Bridge at the time of the injury. Compare, e.g., Downs Report at 2, with U.S.'s SMF ¶¶ 7- 17 (describing the storm).

         The following facts about the storm are not contested, however. Three days before the accident, on October 26, 2012, the District's then-Mayor Vincent Gray had declared a State of Emergency “[b]ecause a storm system associated with Hurricane Sandy” was then “rapidly approaching the District” and was “expected to have serious widespread effects in the region.” D.C.'s Mot., Ex. A, Mayor's Order 2012-186, “Declaration of Public Emergency, ” (Oct. 26, 2012) (“D.C. Emergency Declaration”), ECF No. 43-1; see also U.S.'s SMF ¶ 10 (citing U.S.'s Mot., Ex. B, D.C. Emergency Declaration, ECF No. 47-4); D.C.'s SMF ¶ 1.[3] At a press conference on October 28, Gray cautioned D.C. residents to “shelter in place during the peak of this storm.” U.S.'s SMF ¶ 13 (citing U.S.'s Mot., Ex. C., Press Release, D.C. Multi-Agency, “Mayor Gray Closes District Government Monday, ” Oct. 28, 2012 (“Press Release”), ECF No. 47-5); see also D.C.'s Mot., Ex. F, Tim Craig, Hurricane Sandy: D.C. Mayor Gray Calls for Immediate Preparations, The Washington Post (Oct. 28, 2012), ECF No. 43-1 (recounting the press conference).[4] Gray also said that the District “is likely to suffer significant power outages due to fallen trees and other debris.” Press Release. The District's press release issued about the press conference stated that “the peak of the extreme winds [were] expected between about noon Monday[, October 29] and the early hours of Tuesday morning.” Id.

         Before her injury, the plaintiff “knew that there was a hurricane coming” on October 29 but was unaware that the Mayor had declared a State of Emergency. D.C.'s SMF ¶ 18 (quoting D.C.'s Mot., Ex. J., Pl.'s Dep. at 67:6 to 67:23, ECF No. 43-1), ¶ 19 (citing Pl.'s Dep. at 68:16 to 68:21). When asked if she “recall[ed] if the news said when the hurricane would arrive, ” the plaintiff responded, “[t]hat evening”-that is, “[t]he evening of the 29th.” Id. at 68:23 to 69:9.

         NPS facility manager for Rock Creek Park, Donald Kirk, testified that “Hurricane Sandy brought a lot of trees down [in the Park].” D.C.'s Mot., Ex. C, Kirk Dep. at 44:5 to 44:6, ECF No. 43-1. Bramble, the NPS horticulturalist, stated that the uprooted tree under the Bridge “appeared to have fallen from the rain and heavy wind.” Bramble Dep. at 101:8-9. The plaintiff has submitted an expert report by arborist Lew Bloch opining, after reviewing photographs of the tree debris found on the Bridge and other evidence, that the limb on the Bridge “had been dead or dying and decaying” for three to six years and that the limb “was large enough that it should have been evident and discovered during tree risk assessment[s].” Bloch Report at 2.[5]

         B. Procedural History

         The plaintiff filed this suit in 2015. See Compl. at 1. The complaint alleges that D.C. “has a duty to inspect and maintain its roads, sidewalks and trees so as to avoid risk of harm or bodily injury, ” id. ¶ 47, and that the United States “has a duty to inspect and maintain its parks, trees and the surrounding environs so as to avoid the risk of harm or bodily injury, ” id. ¶ 19. The District allegedly breached its duty by “failing to exercise ordinary care in [the] inspection and maintenance of roads, sidewalks and trees, ” id. ¶ 48, and the United States allegedly breached its duty by “failing to exercise ordinary care in its inspection and maintenance of Rock Creek Park and its trees, ” id. ¶ 20. Both defendants, the complaint says, negligently “fail[ed] to remove any and all trees, limbs, branches and/or debris that posed a threat of harm or bodily injury in a timely manner.” Id. ¶¶ 20 (Count I against United States), 48 (Count V against District).[6] The complaint “requests a trial by jury on all eligible claims.” Compl. at 14. By statute, “the court without a jury” is the trier of fact in the action against the United States, 28 U.S.C. § 2402, but the plaintiff's claim against the District is eligible for a jury trial.

         The United States' motion to dismiss the claim against it for lack of subject matter jurisdiction, see U.S.'s Mot. to Dismiss, ECF No. 14, was denied because the discretionary function exception to the FTCA's waiver of sovereign immunity did not apply when NPS' tree maintenance was governed by federal regulations “prescrib[ing] mandatory conduct for the maintenance, inspection and record-keeping for trees in Rock Creek Park and further, to the extent such actions are discretionary, implementation requires the application of scientific and professional judgment, not the weighing of policy factors underlying the discretionary function exception, ” Walen v. United States, 246 F.Supp.3d 449, 457 (D.D.C. 2017). At the same time, Walen dismissed counts of the complaint against several federal agencies, explaining that “the FTCA provides the exclusive remedy for tortious conduct by the United States, which, consequently, is the only properly named [federal] defendant.” Id. at 452 n.3.

         Discovery then began and, following half a dozen extensions, lasted fifteen months. See Min. Orders (Apr. 18, 2017; May 25, 2018; Sept. 12, 2017; Oct. 5, 2017; Dec. 1, 2017; Jan. 16, 2018; Apr. 13, 2018; May 25, 2018). The District's and the United States' motions for summary judgment are now ripe for review.


         Summary judgment may be granted only if “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). “Material facts are those that might affect the outcome of the suit under governing law; genuine issues are those in which the evidence before the court is such that a reasonable trier of fact could find for the moving party.” Hendricks v. Geithner, 568 F.3d 1008, 1012 (D.C. Cir. 2009); see also Arrington, 473 F.3d at 333 (“A dispute over a material fact is ‘genuine' if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The burden is on the moving party to demonstrate that there is an “absence of a genuine issue of material fact” in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hendricks, 568 F.3d at 1012.

         In determining whether there is a genuine dispute for trial, a court must “view the evidence in the light most favorable to [the non-moving party], draw all reasonable inferences in [that party's] favor, and may not ‘make credibility determinations or weigh the evidence.'” Iyoha v. Architect of the Capitol, 927 F.3d 561, 565 (D.C. Cir. 2019) (quoting DeJesus v. WP Co., 841 F.3d 527, 531 (D.C. Cir. 2016)). In the end, “a movant is entitled to summary judgment when, drawing all inferences in favor of the non-movant, a reasonable jury could not return a verdict in the non-movant's favor.” Davis v. District of Columbia, 925 F.3d 1240, 1248 (D.C. Cir. 2019) (citing Celotex, 477 U.S. at 326-27; Anderson, 477 U.S. at 248).


         The District and the United States move separately for summary judgment on multiple, and overlapping, grounds. See D.C.'s Mem. Supp. Mot. Summ. J. (“D.C.'s Mem.”) at 1-2, ECF No. 43; U.S.'s Mem. Supp. Mot. Summ. J. (“U.S.'s Mem.”) at 1-2, ECF No. 47-2. To preview, the District seeks summary judgment on three grounds: sovereign immunity, see D.C.'s Mem. at 10; the insufficiency of the plaintiff's expert report to carry the plaintiff's burden under D.C. law to demonstrate the applicable standard of care, see Id. at 14-21; and the operation of complete defenses, including contributory negligence, assumption of risk, and act of God, D.C.'s Mem. at 9, 22-26. The United States' motion builds on two of the District's arguments, also attacking the plaintiff's expert report and raising the defense of contributory negligence. See U.S.'s Mem. Supp. Mot. Summ. J. (“U.S.'s Mem.”) at 1-2, 8-12, 15, ECF No. 47-2.

         Each of the defendants' arguments is addressed in turn, with each applicable standard of review presented before the analysis, starting with the District's motion.

         A. The District's Motion for Summary Judgment

         1. Sovereign Immunity

         a) Applicable Legal Principles

         The District asserts that sovereign immunity bars the claim against it because “the District is immune from suit in tort if the act complained of was committed in the exercise of a discretionary function, ” D.C. Hous. Auth. v. Pinkney, 970 A.2d 854, 859 (D.C. 2009), and the District classifies the “tree inspection and removal program []as discretionary in nature, ” D.C.'s Mem. at 10. The District acknowledges, id., that no immunity from suit is provided “where the District's conduct arises out of the exercise of ministerial powers” for which “there is a duty to act in a reasonably safe and skillful manner, ” Pinkney, 970 A.2d at 859 (quoting District of Columbia v. Pace, 498 A.2d 226, 228 (D.C. 1985)); accord Nealon v. District of Columbia, 669 A.2d 685, 690 (D.C. 1995). “The determination of whether a governmental function is discretionary or ministerial is one of law to be made by the trial judge, ” Aguehounde v. District of Columbia, 666 A.2d 443, 445 n.3 (D.C. 1995), and D.C. law places on the District the burden of demonstrating that the function at issue in a suit is discretionary, see Barnhardt v. District of Columbia, 8 A.3d 1206, 1214 (citing Aguehounde, 666 A.2d at 445 n.2).

         The question of whether an action is discretionary “goes beyond whether the act entailed a choice among alternatives. It seeks to ascertain whether the governmental action . . . allows significant enough application of choice to justify official immunity, in order to ensure fearless, vigorous and effective decision making.Casco Marina Dev., L.L.C. v. D.C. Redevelopment Land Agency, 834 A.2d 77, 81 (D.C. 2003) (quoting Moss v. Stockard, 580 A.2d 1011, 1020 (D.C.1990)). The general rule is that “discretionary acts involve the formulation of policy, while ministerial acts involve the execution of policy.” Pinkney, 970 A.2d at 860 (quoting Nealon, 669 A.2d at 690)). “Discretionary acts have also been defined as acts that require personal deliberation, decision and judgment. They generally have a broad public effect and call for a delicate balancing of competing considerations.” Nealon, 669 A.2d at 690 (internal quotation marks and citation omitted). “[M]inisterial acts require little or no judgment, and generally constitute ‘mere obedience to orders or performance of a duty in which the [municipal employee] has little or no choice.'” Id. (alteration in original) (quoting 18 E. McQuillin, Municipal Corporations § 53.22.10 (3d ed. 1984)).

         These definitions of discretionary and ministerial conduct under D.C. law have developed greater concreteness in cases brought by plaintiffs injured on public roads and streets.[7] On the one hand, roadway “planning and design are discretionary functions.” Pace, 498 A.2d at 229 (citing Johnston v. District of Columbia, 118 U.S. 19, 20-21 (1886); District of Columbia v. North Washington Neighbors, Inc., 367 A.2d 143, 148 n.7 (1976), cert. denied, 434 U.S. 823 (1977)). Thus, the District has been granted immunity from legal challenges to “the placement of traffic control devices, ” Pace, 498 A.2d at 229 (discussing Urow v. District of Columbia, 316 F.2d 351 (D.C. Cir.) (per curiam), cert denied, 375 U.S. 826 (1963)), and “bus stops, ” McKethean, 588 A.2d at 715; the “setting of yellow intervals” for traffic lights, Aguehounde, 666 A.2d at 451; as well as “freeway improvements, ” Pace, 498 A.2d at 229. What these discretionary, roadway-related functions have in common is that they are “complex, involving the consideration of many competing factors and large expenditures of scarce resources, ” id., and so “[t]here is no reason to believe that the laymen on a jury are better qualified than the District's experts to render a decision on those matters, ” id. at 230; see also, e.g., Urow, 316 F.2d at 352 (calling a city's “general traffic control plan” “discretionary” and “quasi-legislative”).

         On the other hand, “the District does have a ministerial duty to maintain its streets and highways, ” Pace, 498 A.2d at 230, where “maintenance means keeping the roadway and its physical appurtenances in good condition, according to their original design, ” id. at 231 (citing Wagshal v. District of Columbia, 216 A.2d 172, 172-74 (D.C. 1966); District of Columbia v. Freeman, 477 A.2d 713, 715 (D.C. 1984)); see also Wagshal, 216 A.2d at 173 (“[I]t is well established that an exception to the doctrine of sovereign immunity is the District's obligation to maintain the streets in a reasonably safe condition for travel.” (citing Urow, 316 F.2d 351; Booth v. District of Columbia, 241 F.2d 437 (D.C. Cir. 1956); District of Columbia v. Caton, 48 App. D.C. 96 (1918)).

         This distinction-between the discretionary functions of planning and design and the ministerial function of maintenance-is rooted in over a century of case law defining the scope of the District's “duty . . . to maintain its streets ‘in a condition fit for convenient use and safe against accident to travelers using them.'” Husovsky v. United States, 590 F.2d 944, 950 (D.C. Cir. 1978) (quoting District of Columbia v. Woodbury, 136 U.S. 450, 463 (1890)); see also Urow, 316 F.2d at 352 (calling this duty an “exception to the general rule of municipal immunity with regard to the obligation to keep streets in a safe condition after being put on notice of a defect”).[8] For example, in 1886, in Johnston v. District of Columbia, 118 U.S. 19 (1886), the Supreme Court explained that the District's decisions about the planning and design of its sewer system were discretionary but “for any negligence in . . . keeping [the sewer] in repair, . . . the municipality . . . may be sued.” Id. at 21. D.C's Court of Appeals has relied on cases like Johnston in defining the scope of modern-day sovereign immunity. See Pace, 498 A.2d at 230- 31 (relying on such cases); Wagshal, 216 A.2d at 173 (same).

         b) The District's Claim to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.