Smith, Mary Jo v. Sheraton WA Hotel
135 F.3d 779
D.C. Cir.
1998
Check Treatment

*1 Mary SMITH, Appellee/Cross- Jo HOTEL, Appellee, MADISON Appellant, HOTEL AND RESTAURANT WASHINGTON SHERATON EMPLOYEES, LOCAL 25 CORPORATION, Appellant/Cross- AFL-CIO, Appellant. Appellees.

No. 96-7270. 96-7228, Nos. 96-7238. Appeals, United States Court of Appeals, United States Court of District of Columbia Circuit. District of Columbia Circuit. 20, Argued Nov. 1997. 28,

Jan. 1998. Decided Feb. EDWARDS, WALD, Judge; Before Chief SILBERMAN, WILLIAMS, GINSBURG,

SENTELLE, HENDERSON, RANDOLPH,

ROGERS, GARLAND, TATEL and Circuit

Judges.

ORDER

PER CURIAM.

Upon appellant’s Sugges- consideration of Banc, Rehearing response

tion For

thereto, by majority and the vote of the

judges regular, of the court in active service suggestion,

in favor of the it is suggestion grant-

ORDERED that the be

ed. This case will be reheard court

sitting Wednesday, in banc on March at 10 AM. The herein filed 7,1997

on November is vacated. It is parties

FURTHER ORDERED that thirty copies

shall file an additional

briefs, joint appendix, and of the and do so 11,1998. February

on or before *2 Lopata, Baltimore, MD,

Edward J. argued *3 the cause and filed the appel- briefs for lant/cross-appellees. Wehner,

Stephen DC, Washington, V. ar- gued the cause and appel- filed the for briefs lee/cross-appellant. WALD, WILLIAMS,

Before: RANDOLPH, Judges. Circuit Opinion for the Court filed Circuit Judge RANDOLPH. opinion

Dissenting Judge filed Circuit STEPHEN F. WILLIAMS.
RANDOLPH, Judge: Circuit 2, 1993, plaintiff, On June Mary Jo Smith, injuries sustained head when she fell ramp leading off a parking garage from a lobby into a of the Washington Sheraton Invoking Hotel. diversity the district court’s jurisdiction, § 28 U.S.C. Smith named responsible as defendants for the condition ramp Corporation; of the ITT Sheraton Washington Corporation; Sheraton Operating Corporation; Woodley Road Asso- ciates, Inc.; John Hancock Mutual In- Life Company; surance and Sumitomo Life Real- ty.1 evidence, At the close of all the attorney jointly representing these six defen- judgment dants moved for as a matter of 50(a). law. See Fed. R. Civ. P. The district granted court except respect the motion Washington Corporation, which remaining became the sole defendant. The Corpora- found guilty negligence tion and awarded Smith $175,000.

Thereafter, Washington Corpora- judgment tion renewed its motion for as a remittitur, matter of law or a new trial or arguing present any that Smith had failed to showing who owned controlled 50(b) ramp. Fed. R. P. and 59. Civ. The district court denied the motion. granted judgment Parking Garage. appeal 1. The district court aas matter Smith does not this defendant, Doggett of law in favor of a seventh order. Inc., Enterprises, operator of the Sheraton (D.C.Cir.1964); Corpo- Hilleary Earle Restau- appeal, In its Inc., (D.D.C.1952). and, rant, sufficiency F.Supp. of the evidence A ration raises alternative, operates trial on party premises seeks a new who but nei- in the also “egregious conduct” ther the owner nor the lessee have basis duty at 17. Smith Appellant for of reasonable care. See F.W. Wool- Brief counsel. (D.C. Stoddard, judgment in favor of from the worth Co. v. 156 A.2d cross-appeals 1959). other defendants. the five legal are well principles governing I court deci- review of district

known. Our up willWe take first Smith’s claim as a matter of on motions sions granting judg that the district court erred all evidence in is de novo. We consider law *4 Corporation. Operating ment for Sheraton nonmoving to the light most favorable the for the six told the court: Counsel defendants Columbia, 101 v. District party. See Scott of move as a would for matter (D.C.Cir.1996). “[W]e 748, We do not F.3d 752-53 all of law as to six of the defendants that I evidence, only weight of the its assess the complete representing am there is a because jury’s will stand un- sufficiency. The verdict plaintiffs of case lack the as to infer- all reasonable less “the evidence and which, any, corporations if own” these are can be drawn therefrom so ences that Trial Transcript hotel. at 967. Defense men and women one-sided that reasonable acknowledged counsel then that one witness disagree on the verdict.” Id. at could not working testified to for the had Sheraton “more than But the evidence must be Corporation Operating and so he assumed colorable”; “significantly it merely must be defendants, “for all the other five our motion Corp., Siegel Motor probative.” v. Mazda granted.” should be Id. at 1014. The court (D.C.Cir.1989). 435, 437 responded: only possible “[T]he defendant case, diversity Because this is a brought have [sic] tort law of the District of Colum substantive jury may Washington attention of the be the Joy Helicopter Tex controls. See v. Bell bia Corporation everyone ... Sheraton other (D.C.Cir.1993). Inc., tron, 549, F.2d 999 553 Washington Corporation than Sheraton out by of care owed an owner or The standard of the case.” Id. at 1079-80. occupier of land is “reasonable care under all exchange, this court must Given have As of the circumstances.” v. Sandoe Lefta keep Operating Corpora- meant to Sheraton (D.C.1988). socs., A.2d To re 559 738 grant judgment tion in the ease and to for occupier or against cover either an owner defendants, including Washing- the other five land, plaintiff must show “that the defen Corporation. only ton Sheraton evi- notice —either actual or construc dant had ownership brought dence or control present allegedly of an tive —of the existence Operat- jury’s attention related Sheraton Hall, dangerous condition.” Croce ing Corporation. A witness for the (D.C.1995). generally A.2d While a testified that had he was the director of responsible injuries is not for landlord caused engineering at the Washington Sheraton Ho- by developing after conditions lessee employed by was Operating tel and Sheraton a possession, party third recover takes Corporation. He further testified property or against the lessor landlord of department engineering responsible was public purposes party if the dem leased for ramps leading from the maintenance of injury that the was caused onstrates garage to the hotel. existing pos took “condition when the lessee that the “knew or there session” and lessor should Because was evidence Corporation’s prem- Operating have known of the condition and realized or control of the ises, risk” it removed should have realized the unreasonable should have been from (Second) the case for lack of evidence. The involved. such court Restatement ToRts (1965); remain, Daly Toomey, § 212 plainly although see also intended for it to (D.D.C.1963), F.Supp. something quite 478-79 sub the order stated different. aff'd for a Daly, nom. Muldrow v. 329 F.2d 886 We therefore reverse and remand new Co., 317, 329, Operating Corpora- 1072, 1080, 18 against 386 U.S. trial S.Ct. (1967)); tion. L.Ed.2d see also Fed. R. Civ. P. 50(d). discussed, For the reasons next we II order new trial. appellant We shall deal next Wash- ington Corporation. In the confu- A. The Pretrial Order similarity of the defen- sion caused names, up before the dants’ alone wound trial, again appeal, defended at on the

jury. appeal, Washington On Sheraton Cor- proof’ basis that there was a “total lack of poration argues that the district court erred its or control of the hotel. Trial submitting the case to the because 1003; Transcript at see Appel also Brief for Smith “failed to introduce evidence of who ignores lant at 9. But pretrial this order ramp.” owned or controlled the Brief for ease, in the designed an order to “control the Appellant at 7. Sheraton Cor- subsequent course of the action.” Fed. R. out, points correctly, only poration that the 16(e). pretrial Civ. P. Smith’s statement de testimony defendant mentioned in trial owners, scribed the defendants as “all either Operating Corporation. Id. at 5. operators, parent corporations of the words, impli- In other because the evidence *5 Washington Sheraton The Hotel.” Sheraton only Operating Corporation, Sheraton cated pretrial defendants’ statement stated that against Washington the verdict Sheraton Operating Corporation “operates Sheraton Corporation cannot stand. Washington the Sheraton pursuant Hotel to Washington We believe Sheraton management agreement a Woodley Corporation’s post-trial judgment motion for Woodley Road Associates. Road Associates granted, as a matter law should have been Washington leases the Sheraton Hotel from just but for a reason other than the one Woodley 2660 Road Joint Venture.” The mentioned. Smith’s case failed not on the Joint Venture consists of John Hancock Mu ownership element of or control —as we shall Company, tual Life Insurance in a discuss moment —but the element of Realty, Washington Corporat and Sheraton knowledge. presented no Smith evidence ion.2 See Defendants’ Answer to First Washington Corporation knew Complaint. heading Amended Under allegedly known of the should have dan Defenses,” “Statement of the Sheraton de Croce, gerous ramp. condition See 657 fendants listed four which defenses are so Judgment at 311. a A.2d as matter law they may entirety. brief be set out in their may party present if be rendered one fails to by 1. Plaintiffs claim is barred her con- Ferguson on a material issue. See tributory negligence failing in to see and Co., v. F.R. GMBH & 79 F.3d 1221 Winkler warning sign heed the clear on the door (D.C.Cir.1996); Caterpillar, McFarlane v. leading lobby to the elevator on the third (D.C.Cir.1992). Inc., 974 F.2d 176 floor of the Park Tower. Having concluded that the district 2. Plaintiff cannot show how accident denying Washington court erred in occurred because she has no recollection of Corporation’s judgment motion for as a mat actually happened how it and therefore she law, may ter of we have three choices. We cause, prove proximate cannot which is an party, may enter for that or we essential element of her claim. trial, may order a new or we remand the case to the district court to determine whether a 3. There is no evidence of wanton or Scott, appropriate. pu- support new trial is See reckless conduct to a claim of (citing Neely Eby damages. at 760 v. Martin K. Constr. nitive statement, pretrial 2. In the counsel for the Sher- seems to be an error. In the Answer and in This joint Response Interrogatories, partners aton venture as defendants described the Hancock, being comprised Realty joint of "Sumitomo Life venture are listed as John Inc., Sumitomo, (N.Y.), Corpora- John Hancock Mutual Life Insur- and Company, Corporation.” ance tion. and ITT Sheraton 784 (1st 1184, Cir.1995); sup- Fed. R. P. damage claims are Crv. Plaintiffs 16(c) competent advisory pri- by evidence. committee’s note. Even

ported ma facie element case statements, exchanging pretrial these After dispute from in this manner. be removed pretrial confer- appeared for a parties Enter., Inc., Reyes Romero v. Marine 5, 1995, weeks seven be- ence. On October (1st Cir.1974). Furthermore, 494 F.2d 866 trial, magistrate judge entered a final fore party’s pretrial Rule 209 requires Local 16(e) pretrial order. The order stated Rule contain of defenses statement to a statement parties’ pretrial statements were party, including “defenses raised “incorporated the defen- herein” and denial, way general re- raised without owners, operators, parent “are the dants party per- gard to which has the burden of point corporations of hotel.” At no 209(b)(4). D.D.C.R. suasion.” proceedings the Sheraton defen- these did dispute their or control of dants pretrial resulting statements and the facility. parking the hotel and its representa- are consistent with other order 16 pretrial A Rule order “conclusive during tions Sheraton defendants made of fact and law in ly the issues establishes] litigation. Responding inter- the course case,” Hougham, United States rogatories, Operating 315, 13, 17, 310, 5 L.Ed.2d 8 U.S. S.Ct. Woodley stated: “2660 Road Venture is Joint (1960), thereby opportunities “lessening the the owner of the Ho- “expediting the surprise” trial.” limine, tel.” their motion in the defen- 747, Leuthold, 274 F.2d Rosden v. dants, referring “collectively to themselves as ” (D.C.Cir.1960). Idaho, See also ‘Sheraton,’ Lankford stated as the that “Sheraton 1729, 111 S.Ct. 500 U.S. premises duty owner of the its satisfied (1991); A. Wright 6A CHARLES L.Ed.2d plaintiff.” *6 AL„ ET FEDERAL PRACTICE AND PROCEDURE grant judgment Thus the district of court’s ed.1990). (2d comply § 1527 Failure to with in favor of five of was the six defendants pretrial give rise to a order can sanctions. erroneously predicated ground on the 16(f). pretrial Rule While a order See prove ownership had failed to or con- Smith prevent injustice,” be “to manifest modified pretrial the trol when order had relieved 16(e), the in this case never Rule defendants proving from the this. Smith burden of was entitled sought a modification. Smith to rely parties’ pretrial statements on B. The Conduct of Defense Counsel “precisely pretrial order to inform her in controversy.” what v. Mark- described, [was] As we have defense counsel’s Erff (7th Inc., Indus., 613, 617 Hon 781 F.2d judgment motion for of five of his on behalf Cir.1986); County see also Pierce Hotel Em Corpo- clients included ployees Employees & Restaurant Health explicitly acknowledged ration. Counsel Lodge, Trust v. Elks B.P.O.E. No. testimony concerning there had been Shera- (9th Cir.1987). 1324, 1329 F.2d Operating Corporation. ton He then stood inadvertently granted silent as the court premises liability in a judgment Operating in favor of Sheraton prove owned action must the defendant or kept Washington but But a property. controlled the defendant Corporation in the no case. Defense counsel if any objection this score waives on development glee. this doubt viewed ownership defendant fails to lack of raise net, Every attorney try likes to a ease with a plain face of the control as a defense in the have a sure if the basis for reversal clearly asserting pretrial tiffs statement hand, against finds his the other client. On contrary. City in Morro v. As court said attorney nothing to cor- also said can Birmingham, a waive a “defendant Why rect the court’s he did misstatement. potential failing to ensure defense speak up mystery is a to us. clearly preserved pretrial issue is in the or Cir.1997). (11th rate, any good der.” 117 F.3d See At there is a reason not Francisco, Hospital Correa v. the defense confusion that F.3d reward for the San represented Supreme counsel to the Court ensued. Defense stated that when “the that there was “a total vacuum appeals district court jury’s court of sets aside the verdict Operating as to who owns the Sheraton Cor- because the evidence insufficient to send Hotel, poration, who owns the Sheraton what jury, the case to the it is not so clear that the it,” see Trial Tran- partners are involved litigation should be terminated.” 386 U.S. at script argument 1003. At oral in this at 327, 87 at In considering post- S.Ct. court, defense counsel maintained that his judgment verdict motion for as a matter of ownership Answer denied and control3 while law, a court has district discretion to order acknowledged leasing arrangement grant judgment new trial rather than “if it Clearly someone owned the the hotel.4 hotel believes that nonmoving defect possible and the universe of all owners seems party’s proof might be remedied on a second to have been the defendants. When we Wright trial.” 9A ChaRles A & Arthur R. this, responded asked defense counsel about Miller, Federal Practice and Procedure hotel, he not know who owned the did (2d ed.1994). § appellate at 357 An any of his that he never asked 2540; § court has no less discretion. id. did, they clients whether that he never inves- Publications, see also Network Inc. v. Ellis words, subject. tigated the In other on his (11th Cir.1992). Graphics Corp., interpretation pleading, he filed an involving insufficiency While not all cases denying answer his clients’ with- trial, evidence deserve a new the matters we any knowing out whether the denial had already have mentioned make a new trial the evidentiary foundation. There is a rule appropriate remedy here. against practices. Rule of such Federal Civil 11(b)(4) provides pleadings that in Procedure court, representations to the an

and other III attorney certifying that of factual “denials respect cross-appellees With John Han- on the contentions are warranted evidence Insurance, identified, or, cock Mutual Life specifically reasonably if are so Associates, Realty, Woodley a lack of information or Road we based on belief.” also vacate the in their favor and May The Defect in Proof be Remedia- C. judg- remand for a new trial. The court’s ble proposition ment rested that Smith no had introduced their owner- ordering trial Our final reason new *7 ship or control of the hotel. As we have judgment Washington rather than Shera- discussed, by that issue was conceded Corporation ton is that we believe Smith’s parties’ pretrial pretrial statements and the proof failure of on the element of whether pretrial Defendants’ statement order. de- defendants knew or should have known about may part- Hancock as ramp’s condition be remedied. scribed John Sumitomo and, Co., Venture, Neely Eby Woodley v. Martin K in 2660 Road Joint Construction ners Complaint alleged: 3. Plaintiff's First Amended The Sheraton Defendants submitted two An- swers, following paragraphs: identical in the Corporation 11. The defendant ITT Sheraton 11. Admitted. Corpo- Washington owns defendant Sheraton Washington & Sheraton Hotel 13. The is Operating Corpora- ration and the Sheraton Associates, Woodley by leased Road Inc. and tion. by Operating Corporation. operated Washington Corpo- 12. Defendant is a tenant .under a lease from ration, [sic] The leasee defendant John Hancock Mutual Life Woodley 2660 Road Joint Venture which is Company, Insurance and defendant Sumitomo comprised of John Hancock Mutual Life Insur- Realty partners entity are in an known as Life Realty, Venture, Company, and ance Woodley through 2660 Road Joint Corporation. Washington Sheraton The re- they Washington which own the Sheraton Ho- allegations mainder of the are denied. Parking Garage. tel and the Sheraton Woodley 13. 2660 Venture Joint leases course, negligence against a Washington 4. Of action lie Hotel to defendant Associates, Inc., Woodley who is the lessor rather than the own- defendant Road which in property. joint agreement Operating er of And an admission that one is with Sheraton Cor- poration, operates property a denial that also the Sheraton lessor of is not one is property. Hotel. the owner of the District “Woodley Associates Public Service Commission Road stated and of of Columbia, (D.C.1987), Washington Hotel from 520 A.2d the Sheraton leases Appeals Thus for the District of Columbia Woodley Road Joint Venture.” Court of gave judgment holding company for its that a which owned the court ruled the reasons . corporations parent it. all the stock in three had support do not legal no interest in the taxicabs which were complete lack of ease did suffer Smith’s property corporations. of those The these defen- on the element explained: court there allegedly of the defective had notice dants ramp, for reasons al- corporation of the but Ownership condition one stock appropriate to we it ready identity mentioned believe not create an another does trial. Had district corporate remand for a new com- interest between the two absence of evidence to the stockholding court been alerted com- panies, nor render the grant the defen- knowledge property and decided pany owner of the of the 50(a) ground, motion on ownership dants’ Rule complete other. Even of all grant instead corporation would have had discretion not outstanding stock of a is prejudice. without ownership a dismissal equivalent of a subsid- R. MIL- assets, A. par- 9A iary’s property because a & ARTHUR WRIGHT CHARLES subsidiary comprise wholly ent and two Procedure LER, Federal Practice 318; Virgi- § see also Cone v. West at separate proper- entities with individual Co., 212, 217, 67 Pulp Paper 330 U.S. nia & ty rights. (1947). 752, 755-56, L.Ed. 849

S.Ct. Corpora- (quoting Id. at 18A Am.Jur.2d § ITT (1985)). tions Thus judgment in favor of grant despite Corporation, its matter ITT is another operated companies that leased and the ho- because, entirely. affirm that We tel, did not own the hotel. corporate owner of Shera as a Operating Corporation and Sheraton ton IV ¶ 11, Answer Corporation, see Defendants’ Corporation is not liable for ITT Sheraton reject points of We the additional property by a condition on be harm caused parties. Only error raised one of the As Smith con longing to its subsidiaries. points warrants discussion —the defense con attempt argument, oral no ceded at contributorily negli tention that Smith was pierce corporate veil. made at trial to gent theory as a matter of law. The is that a District of Columbia is that The law the posted sign opening on the door to the corporate obligations of the “the acts and ramp reading Step” “Caution Watch Your — entity recognized as those of a will be sufficiently pointing with arrows down— party seeking to particular person until the great to exercise a alerted the need Smith corporate entity proved by has disregard the degree er of care that her failure to do (1) unity affirmative evidence there *8 contributorily negligent her as a so rendered (2) use of the and interest and Appellant matter of law. Brief for at 13. See corporate perpetrate -form to fraud or Furr, 811, Contributory negligence is almost al wrong.” v. 482 A.2d 815 Vuitch (D.C.1984); jury. ways question of fact for the see also Camacho v. Rhode 1440 (D.C. Columbia, 528, 242, 410 A.2d Corp., 620 A.2d 248 Rich v. District Island Ave. (D.C.1979). cases, 1993). “Only exceptional in ITT 532 Nor can undisputed property facts are and where be as an owner of the wheré the held liable drawn, injury but one reasonable inference can be is where the occurred. It is a funda justified holding negli in that principle corporate law that the trial court “[t]he mental company gence contributory negligence in is has been owner of the shares of stock Singer corporation’s property.” established as a matter of law.” v. not the owner of the (D.C.1967); 436, see also Hosp. Doughton, Doyle, Rhode 236 A.2d Island Trust Co. 87, 69, 81, Corp., Dev. 70 L.Ed. v. Potomac U.S. 46 S.Ct. Jeffries (D.C.Cir.1987). (1926). People’s In Counsel v. 90 Office of against The verdict Corporation relies Washington Sheraton (D.C.1997), Corporation judgments The in is vacated. Loftus, 694 A.2d 69 Poyner v. person Operating Corporation, “must see favor of proposition that a for the Reply Hancock Mutual Life Insurance reasonably there to be seen.” John Com- what Poyner pany, Realty, Woodley held that a Appellant at Brief of to use rea plaintiff had failed Road Associates are reversed. The case is legally blind against he continued to walk care when remanded for a new trial these five sonable turning while his an elevated sidewalk defendants. along moment, “At critical to the side.

head So ordered. testimony, Poyner, who according to his own eight in front of him and six to feet could see WILLIAMS, F. Judge, STEPHEN Circuit handicap, did not look aware of his was dissenting: Poy- A.2d at 71. going.” he was where Except myself I for one issue find full ner, however, not alter District of Co does majority. Unfortunately agreement with the law; Appeals reiterated the Court of lumbia contributory negligence dis- issue— —is exceptional ease is evi “[o]nly in the that If, believe, jury I positive. as no reasonable unambiguous that contrib clear and dence so contributory plaintiff could find the free of a matter utory negligence should be found as negligence, then all the other issues are Johnson, (citing Tilghman of law.” Id. Accordingly moot. I dissent. (D.C.1986)). 1350, 1351 513 A.2d Senator, plaintiff, wife of a U.S. drove sign posted on warning was The fact that at with friends to a lunch the Shoreham ramp not mean leading to the does the door Lady. Hotel in honor of the First Because of her failure fall was the result that Smith’s full, parking at the Shoreham was she ordinary counsel care. Smith’s to exercise there, park and went to left her friends off sign did not argued to the nearby Washington. her car at the person’s at- adequately direct a reasonable parking To exit from the structure to far of a closed anything on the side tention proper, pass through hotel she had Transcript at 1107. The Trial door. See opinion in Exhibit 1 to this Exit door shown pointing ar- cautionary words with downward (a photocopy of Defendant’s black-and-white person to have led a reasonable rows could photograph). Trial Exhibit # a color On danger at the that the doorsill believe handle, it, below the door perhaps two inches a reasonable beyond, than or at least rather warning sign saying, appears a know, jury could so conclude. Smith did door, approached the at the time she CAUTION ramp. opened onto a Even had she been ramp, “[kjnowledge alone of a aware WATCH YOUR charge insufficient to [her] condition is STEP contributory negligence a matter of law.” as Corp., Trust v. pointing down. with five arrows (D.C.1969). Trust, 21, 22 the Court A.2d is a hotel side of the door there On the Appeals although held ramp appears roughly symmetrical to prior step of a to her had noted the existence (Plaintiff’s garage Mo- the one on the side. fall, granting judg- the trial court erred Summary Judgment as to tion for Partial Id. When n.o.v. to the defendant. ment Sheraton, ITT Liability as to Defendants people which reasonable there is evidence on *9 Mutual Realty, John Hancock differ, might see District Columbia v. Coo- of Operat- Company, Life Insurance (D.C.1982), of per, the issue 445 A.2d Woodley Road Associ- ing Corporation and contributory negligence should be submitted C.) ates, person going through A Exhibit jury. here. to the So (i.e., per- directly pursuing a course the door doorway) plane to the of the

pendicular Beyond ramp. the step onto the far a of law in favor would The as matter doorway, the directly aligned with the affirmed. area ITT visibility, jury ramp vertically arguing fell to floor instead to the that it edge the far anyone level, stepped who to the that for any danger so failed to direct attention to on entering the hotel there was a side while transcript the other side of the door. Trial inches —the record does not drop of several this depends at 1107. But on an odd con- many least at the end of how make clear sign. —at struction of the Counsel’s idea evident- It ramp the door frame. the nearest ly was that it directed the reader’s attention ramp, of the the configuration this and/or door, only to hazards before the which she handrail, jury found absence of a it, perhaps before see she touched and could dispute not Defendant does negligent. door, directly to but not hazards beneath reasonably do so. it could just beyond all I at to hazards the door. sign anything cannot see how the means her fall as follows: Plaintiff described patron proceed other than for the to my opened the door ... with left I ... caution approaches both as she and as she my shoulder and probably and left hand steps through the This includes door. well, foot my leg left and as because was steps first she takes on the other side. Of door, very heavy pushed open and a course, special under circumstances a reason- my right proceeded in with foot. door and person might disregard warning, say able My right off that right foot fell side of if pursued by thug. plaintiff she were a But catapulted ramp I was into the metal suggested no such extreme circumstances. the [elevator]. framework of Poyner Loftus, In its recent in decision (“J.A.”) Appendix passage In a Joint (D.C.1997), Ap- A.2d 69 D.C.’s Court deposition into from her read evidence at peals proof made clear that in its view trial, she said contributory negligence as a matter of law is stepped through doorway expecting I just not a event. once-in-a-blue-moon ramp there to be the other side and Poyner, plaintiff, legally blind but able to my just only into —I can foot went describe him, eight see six feet in about front abyss. it as an walkway was on a elevated four feet above According Id. at 267. testimo- lacking guardrails. the street level and ny, sign by she was able to see “Exit” (modest) normally Shrubs as acted barrier “easily,” lighting door and the on the hotel persons’ falling walkway, off the but on brighter” “much side the door was even day question missing, one was as transcript than that. Trial at 1027. Poyner noticed. Distracted someone call- name, ing failing out his to take the I do not believe a reasonable could precautions indicated the absence of the leaving parking have found someone shrub, protective Poyner walked over the garage through this exit could have suffered edge injuries. and suffered The court found the accident that if she exer- befell contributorily negligent his conduct a mat- as light promi- cised reasonable care in case, similarly, plaintiff ter of law. In our First, sign. person nent “Caution” exercis- “failed either to look at all or to look obser- ing sign, right reasonable care would see the vantly plainly and see what should have been next very to the door handle and bold Poyner, visible.” (Plaintiff (quoting 694 A.2d at lettering.1 testified that she did (D.C. 270.) Singer Doyle, A.2d seeing it. Plain- remember J.A. 1967)). evidently sign’s tiffs counsel assumed the photo Ap- sign’s

1. In the color contained in the Joint overstated the salience. black-and- pendix sign gives glow, appears photocopy off an white iridescent but to cancel that over- testimony trial indicates that this well have statement. *10 law, substantive course, To be true to the District’s is, correct majority are contributory negligence review of the district which controls our negligence law, a matter of rarely established as only for a directed court’s decision on the motion (citing Singer v. Maj. Op. at 786-87 see verdict, Ferguson F.R. & Winkler GMBH (D.C.1967)), Doyle, 236 A.2d (D.C.Cir.1996), KG, 1221, 1224 Co. change in District Poyner wrought no grant should reverse for failure we law, Poyner dra- But id. at 787. Columbia motion. of rea- the District’s idea matically illustrates real, its insistence care and sonable jury.

rubber-stamp, superintendence

Exhibit