United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE.
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.
factual and procedural background relevant to resolving the
pending motions is summarized below.
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. ¶¶
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
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.
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
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.
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); 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).
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 ¶
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). 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.
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.
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.
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). 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
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.
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.
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.
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).
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.
the defendants' arguments is addressed in turn, with each
applicable standard of review presented before the analysis,
starting with the District's motion.
The District's Motion for Summary Judgment
Applicable Legal Principles
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).
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)).
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. 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”
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)).
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”). 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).
The District's Claim to ...