Lead Opinion
ON REHEARING EN BANC
Pursuаnt to D.C.Code § 11-723 (1995), the United States Court of Appeals for the District of Columbia Circuit has certified the following question to this court:
Under District of Columbia law, and upon the facts described below, may a plaintiff who has voluntarily assumed an unreasonable risk of incurring a particular injury recover from a defendant who failed to*174 take the last clear chance to prevent that injury?
Johnson v. Washington Metro. Area Transit Auth.,
On March 20, 1986 Devora Johnson jumped from the subway station platform into the path of an oncoming WMATA train. The parties do not contest that Ms. Johnson jumped of her own volition and with the intention of committing suicide.
Id. at 261-62,
I.
“The last clear chance doctrine enables a plaintiff to recover despite [her] eon-tributary negligence." District of Columbia v. Huysman,
a plaintiff ... is permitted to recover, despite her own contributory negligence, if there is evidence (1) that the plaintiff was in a position of danger caused by the negligence o/both plaintiff and defendant; (2) that the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger; (3) that the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiffs danger and of her oblivi[ousness] to it or her inability to extricate herself from it; and (4) that the defendant, with means available to him, could have avoided injuring the plaintiff after becoming aware of the danger and the plaintiffs inability to extricate herself from it, but failed to do so.
Felton v. Wagner,
WMATA as defendant contends that the doctrine of assumption of risk bars plaintiffs recovery, citing inter alia J.D. Lee & Barry A. Lindahl, Modern Tort Law § 11.04, at 324 (Rev. Ed.1997) (“The doctrine of last clear chance has no application to assumption of risk but applies solely to overcome the defense of contributory negligence.”). The certified question also is framed in terms of assumption of risk. The Circuit Court was unsure how this court would analyze the relationship between assumption of risk and last clear chance because some of our decisions have “equated the voluntary assumption of an unreasonable risk with contributory negligence at least in some circumstances.” Johnson II, supra,
In Martin v. George Hyman Constr. Co.,
Apрlying these principles, Ms. Johnson did not merely act in reckless disregard of her safety, she purposely invited the harm that resulted. She thereby relieved WMA-TA of any duty it otherwise owed her, including a duty to grasp the final opportunity— the last clear chance—to avert a harm brought about by her own intentional act.
Plaintiff argues that this analysis wrongly emphasizes the conduct of Ms. Johnson to the exclusion of the behavior of the train operator, whom the jury found to have been reckless both in his primary negligence and in failing to take the last clear chance.
A plaintiff whose conduct is in reckless disregard of [her] own safety is barred from recovery against a defendant whose reckless disregard of the plaintiffs safety is a legal cause of the plaintiffs harm.
Comment c explains:
In general, the effect of the plaintiffs reckless disregard of [her] own safety is the same as that of [her] ordinary contributory negligence. The exception to this rule, stated in Subsection (3), is that where the plaintiffs conduct is itself in reckless disregard of [her] own safety, it bars [her] recovery not only from a defendant who has merely been negligent, but also from one who has acted in reckless disregard of the plaintiffs safety. The greater fault in the one ease is balanced against the greater fault in the other.
The Restatement does not expressly discuss the effect of recklessness by a plaintiff upon the availability of last clear chance, although some case law does. E.g., Conn v. Young,
II.
Plaintiff argues that failure to focus ultimately on the train operator’s conduct rather than on Ms. Johnson’s suicidal intent would relieve WMATA of accountability for violating its public trust as a common carrier. That is not so. “WMATA, like any common carrier, owes a duty of reasonable care to its passengers.” McKethean v. Washington Metro. Area Transit Auth.,
We also cannot ignore the perverse incentive that a contrary holding might provide.
There is a very respectable public policy and common sense argument that an assumption of risk defense, which precludes consideration of who had the last clear chance, would discourage suicides and that allowing a potential suicide to contemplate the possibility of compensation for heirs and next-of-kin would have an opposite and unfortunate consequence.
Johnson v. Washington Metro. Area Transit Auth.,
Against these considerations plaintiff cites the ameliorative and humanitarian aims of the last clear chance doctrine, first in serving to ease the harshness of the contributory negligence defense, see W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 66, at 464 (5th ed.1984), but also in maximizing the incentives for persons able to do so to prеserve the life of a helpless victim. Cf. In re A.C.,
III.
Suicide is a terrible act because it extinguishes a human life and because of the suffering it leaves behind. Despite these tragic consequences, or perhaps because of them, the civil law does not relax the accountability of the actor-victim: “The act of suicide generally is considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent’s death.” District of Columbia v. Peters,
The clerk shall certify this answer to the United States Court of Appeals for the District of Columbia Circuit.
So ordered.
Notes
. Although plaintiff cites evidence in the record of Ms. Johnson’s past mental illness, that is no part of the factual prеdicate upon which we are asked to decide the certified question. The jury was not instructed to consider past hospitalizations of Ms. Johnson as bearing on her responsibility for her suicide; it was instructed that she "intentionally jumped from the train platform on to the tracks” and that “she was aware of and able fully to appreciate the risk that her jump on to the tracks entailed.”
. This case has had a lengthy history. In Johnson v. Washington Metro. Area Transit Auth.,
.Neither the certified facts nor any evidence cited to us supports an inference that Ms. Johnson, after throwing herself on the tracks, aban
. Because Ms. Johnson was a trespasser on the track, see Holland, v. Baltimore & Ohio R.R. Co.,
. Plaintiff cites § 25-127 (under pain of fine and imprisonment, ”[n]o person shall be intoxicated while ... operating any ... car or train of cars ... in the District of Columbia”) as expressing a legislative policy not to exempt a train operator from liability to a plaintiff injured as a result of the driver’s intoxication (drug or alcohol). We glean no such policy from the statute applicable in every case, i.e., without regard to the plaintiff's own fault, any more than we read the workplace safety statute in Martin v. George Hyman Constr. Co., supra, to eliminate entirely the assumption of risk defense.
. Whether this would hold true in a jurisdiction unlike ours in which damages are apportioned based on fault, we have no occasion to consider.
. Besides, as the District Court judge noted, focusing only on the helpless situation of the person who threw herself on the tracks ignores “the fact that decedent may have placed others in danger by her reckless act: By forcing the train operator to apply the mushroom brake, the decedent caused a sudden deceleration which might have injured passengers in the train.” Johnson v. Washington Metro. Area Transit Auth.,
.The “important exception” to this rule noted by Peters where the defendant’s conduct "produces an abnormal condition which results in an uncontrollable impulse to commit suicide,”
Dissenting Opinion
with whom WAGNER, Chief Judge, and REID, Associate Judge, join in Parts I and III, dissenting:
I adhere to the views expressed in the division opinion that would have applied the last clear chance doctrine to this case and permitted recovery by the suicide’s family and estate against a reckless train operator who could have avoided causing Ms. Johnson’s death. See Washington Metro. Area Transit Auth. v. Johnson,
I respectfully dissent from the majority for two principal reasons. First, the majority’s analysis, which focuses exclusively on the suicide’s conduct, undermines the policies which result in imposition of liability in those situations where the defendant has the last clear chance to avoid injury by exercising reasonable care. Second, the premise for the majority’s analysis, that Ms. Johnson, a suicide, acted with the requisite voluntariness and knowledge, is inconsistent with society’s condemnation of suicide and is not supported by the record sent to us by the Court of Appeals, which shоws that Ms. Johnson had a history of serious mental illness requiring numerous hospitalizations.
I.
Under the majority’s analysis, the egregiousness of the defendant’s conduct, its importance in the chain of causation and the foreseeability of death if the defendant did not exercise reasonable care are made irrelevant. By focussing exclusively on Ms. Johnson’s conduct, and releasing WMATA and the train operator for any liability connected to her “invited” death, the majority overlooks the significance of the fact that the reckless act of the train operator in this case — the failure, due to his intoxicated condition, to stop the train when he became aware of Ms. Johnson’s pеril — occurred subsequent to Ms. Johnson’s act of jumping onto the train tracks, and was the immediate cause of her death.
In the majority’s view, once the voluntariness and intentionality of the plaintiffs action is established, plaintiffs consent to death relieves defendant of liability for all subsequent tortious conduct or, as in this case, even reckless behavior which causes injury or death. The majority’s conclusion not only exceeds the traditional scope of the risk deemed to be assumed under assumption of risk doctrine, but also goes against the public policy exception for express agreements to assume risk. Under traditional primary assumption of risk analysis, while a plaintiffs voluntary action in encountering a known risk may relieve the defendant of certain obvious risks which the plaintiff can be said
Beyond these limitations on the assumption of risk doctrine, traditional tort analysis also leads to the conclusion that if the defendant’s negligence supersedes the plaintiffs own intentional conduct and is the proximate cause of plaintiffs injury, the defendant is liable. See Rinaldo v. N.Y. City Transit Auth.,
The majority excepts suicide from application of the last clear chance doctrine reasoning that by her intentional suicidal act, Ms. Johnson “invited” the particular injury that killed her, citing the “ancient maxim, ‘Volenti non fit injuria,’ which signifies that no wrong is done to one who consents.” Restatement (Second) of Torts § 496A cmt. b. The theory of primary assumption of the risk, equated to volenti non fit injuria,
reflects the individualism of the common law in relationships wherein it was felt that the duty of self-protection against many hazards rested primarily on each participant.
It is a negation of duty by one to look out affirmatively for the other’s safety. It is clear then that the concept оf assumption of risk in the primary sense is not to be considered in a situation where defendant has breached a duty towards plaintiff— where the latter has “a statutory right to protection, or a common law right or ... individual right at law to find these particular premises ... free from danger....” This means specifically that even when a danger is fully known or comprehended plaintiff is not barred from recovery simply because he chooses deliberately to encounter it....
James, supra,
II.
The majority opinion is flawed in two respects when viewed within the particular context of a suicide.
Implicit in the majority’s assumption that Ms. Johnson was of sufficiently sound mind when she jumped onto the tracks is the thought that at least some degree of mental incapacity or illness might reduce the “volun-tariness” of the act of suicide so as to continue to hold the train conductor to society’s expectations of reasonable conduct. Although I welcome a suggestion that promises to temper the majority’s analysis, I believe that for purposеs of imposing tort liability on a person who could have prevented death by exercise of the common law duty of due care, we should be able to raise an evidentiary presumption, as a matter of law, against the voluntariness and soundness of a suicidal action. See Rinaldo, supra,
Second, the majority’s denial of recovery revives an outdated, punitive attitude toward suicide. There is no question that if instead of having jumped, Ms. Johnson had slipped or been pushed onto the train tracks, the majority would hold WMATA liable for simple negligence. It is solely her suicidal intent that relieves WMATA of liability for its operator’s reckless conduct in this case. This smacks of punishment for “bad conduct” — even though we have reason to believe that the plaintiffs fault for her conduct is likely to be mitigated by illness or pressing circumstances. Further, the majority exacts punishment not on the person who acted in contravention of society’s condemnation of suicide — she is now dead — but on her estate and her family, in other words, on her children, husband and parents who survive her. We do not criminalize attempted suicide, however, recognizing that treatment, not punishment, is the indicated response. Meanwhile, the train operator who could have prevented the suicide society abhors, and who in addition acted against societal norms, recklessly and in violation not only of the common law but also of a statute intended to protect the public that does criminalize operating a train while intoxicated, see D.C.Code § 25-127, is dismissed as a culpable party bearing responsibility for the injury. Why should his reprehensible conduct not be assessed with damages for the foreseeable harm it caused?
III.
The majority closes with a quote from District of Columbia v. Peters,
At oral argument counsel for WMATA was asked to distinguish a situation where the suicide, rather than jumping onto train tracks, chooses the less public and dramatic means of taking an overdose of pills in the privacy of her home. Alerted by a family member who happens onto the scene, paramedics arrive and the person is taken to the emergency room of a nearby hospital. There, the treatment team fails to provide the indicated treatment because they are intoxicated. The patient dies. Counsel for WMATA was unable to distinguish that hypothetical from this case; neither can I. Nothing in the majority’s reasoning would hold the medical personnel and hospital accountable, for in the hypothetical case the suicide similarly “invited” death and indeed аchieved it by her chosen means. But cf. D.C.Code § 6-2427(a) (relieving medical personnel from criminal and civil liability for assisting in suicide by withholding or withdrawing life support procedures subject to limited conditions). Only application of the last clear chance doctrine, looking at the superseding breach of the duty of due care of the medical team that could have avoided an otherwise certain death, would result in liability. The majority’s conclusion to the contrary is beneath our honed principles imposing liability on one who with the superior ability and last opportunity to prevent serious injury, fails to act reasonably under the circumstances.
. The majority contends that where the plaintiff and defendant are equally at fault, the law “leaves [them] where it finds them.” Griffin v. Shively,
. "The distinction [between volenti non fit injuria and assumption of the risk] is, however, one without a difference, of terminology only, and the rules applied are the same in either case." Restatement (Second) of Torts § 496A cmt. b.
. The majority opinion answers only the question of suicide and “invited” death, reserving the issue of assumption of risk by the reckless plaintiff whose conduct results in death. See ante at 176. The commentators, however, do not distinguish between a voluntary act and assumption of the risk, both of which hаve the consequence of relieving the defendant of duty to the plaintiff. See Restatement (Second) of Torts § 496A cmt. b, supra note 2.
. In its opinion certifying the question to us, the Court of Appeals states that the parties did not contest that Ms. Johnson "jumped of her own volition and with the intent to commit suicide.” Johnson v. WMATA,
. Under the D.C. law, a physician or other listed medical personnel who withholds or withdraws life-sustaining procedures from a "qualified patient” pursuant to a valid declaration, is not subject to civil and criminal liability or considered to have behaved unprofessionally. See D.C.Code § 6-2427(a). The resulting death is not a suicide and the physician’s actions do not constitute the crime of assisting suicide. See D.C.Code § 6-2428(a). A “qualified patient" is a person "who has executed a declaration in accordance [with the statute, requiring two witnesses] and who has been diagnosed and certified in writing to be afflicted with a terminal condition by 2 physicians who have personally examined the patient, one of whom shall be the attending physician." D.C.Code § 6-2421(5).
Under the Oregon law, a person who qualifies in terms of being competent and terminally ill, must make a voluntary written request, witnessed by at least two individuals, one of whom must attest to the patient’s capacity and desire to die. The request to die must have been made twice orally. The person always retains the right to rescind the request to die. Or.Rev.Stat. §§ 127.810 & .840.
Dissenting Opinion
dissenting:
For the reasons stated in Parts I and III of Judge Ruiz’ dissenting opinion, I agree that the last clear chance doctrine should apply to allow a plaintiffs estate and heirs to recover against a defendant who wilfully or wantonly failed to take action to prevent the decedent’s death even though the decedent intentionally placed herself in a position of peril from which she could not extricate herself.