WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Aрpellant, v. Eleanor T. JOHNSON, et al., Appellees.
No. 96-SP-1784.
District of Columbia Court of Appeals.
Argued April 21, 1998. Decided March 3, 1999.
726 A.2d 172
Under the more lenient “fair and just” standard applicable to a presentencing motion to withdraw guilty plea, in my opinion, the trial court erred in denying appellant‘s motion. Leave to withdraw a guilty plea before sentencing should be allowed freely, ” if for any reason the granting of the privilege seems fair and just.‘” Gooding v. United States, 529 A.2d 301, 306 (D.C.1987) (quoting Kercheval v. United States, 274 U.S. 220, 224 (1927)). Here, factors for allowing withdrawal weighed strongly in appellant‘s favor (i.e., assertion of legal innocence, early request for withdrawal, and lack of prejudice to the government). See Binion v. United States, 658 A.2d 187, 191 (D.C.1995) (citing Springs v. United States, 614 A.2d 1, 3 (D.C.1992) (other citations omitted)). Appellant asserted his innocence both before and after the plea, and he advanced a cognizable defense. Specifically, he contended that he was not at the scene of the crime, and there was evidence that the victims had failed to identify him. Unknown to the trial court at the time of the plea, appellant had taken two drugs, dilantin and phenobarbital, a narcotic, which he contended, affected his ability to think. The trial court found specifically that withdrawal of the plea would not prejudice the government. On these facts, which are set forth more fully in the majority opinion, the “fair and just” standard was met, in my view.
Where the trial court erred in its analysis, in my opinion, was in deciding the merits of the defense advanced by appellant. In resolving a motion to withdraw a guilty plea filed before sentencing, the “court should not attempt to decide the merits of the proffered defense, thus determining the guilt or innocence of the defendant.” Gooding, supra, 529 A.2d at 306 (quoting Gearhart v. United States, 106 U.S.App.D.C. 270, 272, 272 F.2d 499, 502 (1959)). I must disagree with the majority that this court‘s decision in Austin v. United States, 356 A.2d 648, 649 (D.C. 1976) requires us to hold to the contrary. On this issue, we are bound to follow the decision in Gearhart, which holds that the court should not resolve the merits of the defense in deciding the motion. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971) (Decisions of the D.C. Circuit rendered before February 1, 1971, “constitute the case law of the District of Columbia“).
The trial court also failed to evaluate the strength of the government‘s proffer. The weakness of the government‘s proffer tends toward allowing withdrawal of the guilty plea. Gooding, supra 529 A.2d at 306. Here, the government acknowledged in its proffer that there would be conflicting testimony about who actually shot the victim. As the majority points out, the trial court also made no explicit findings concerning the competence of counsel, a critical consideration in the analysis. Id. at 307. Given these omissions in the evaluation of appellant‘s request, the error in the treatment of appellant‘s assertion of a defense, the absence of prejudice to the government, and the other factors favoring withdrawal, I can only conclude that the trial court abused its discretion in denying appellant‘s motion to withdraw guilty plea. Therefore, I respectfully dissent from the opinion of the court.
Bruce P. Heppen, with whom Robert L. Polk, Robert J. Kniaz, and Fredric H. Schuster, Washington, DC, were on the brief, for appellant.
Frank M. McClellan, with whom Allen T. Eaton and LaVern D. Wiley, Washington, DC, were on the brief, for appellees.
Jo Anne Robinson, Principal Deputy Corporation Counsel, with whom Charles L. Reischel, Deputy Corporation Counsel, and James C. McKay, Jr., Assistant Cоrporation Counsel, filed a brief for the District of Columbia as amicus curiae.
Before WAGNER, Chief Judge, and TERRY, STEADMAN, SCHWELB, FARRELL, RUIZ and REID, Associate Judges, and KING,* Senior Judge.
ON REHEARING EN BANC
FARRELL, Associate Judge:
Pursuant to
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
take the last clear chance to prevent that injury?
Johnson v. Washington Metro. Area Transit Auth., 321 U.S.App.D.C. 260, 261, 98 F.3d 1423, 1424 (1996) (Johnson II). The “facts described” by the Circuit Court pose that question in the specific context of a voluntary act of suicide. The court states:
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, 98 F.3d at 1424-25. The certified question therefore does not ask us to consider application of the doctrine of last clear chance to a negligent or even reckless plaintiff—one, for example, who sought to outrace an oncoming train in attempting to cross over the tracks. On the certified facts, Ms. Johnson intended the harm that resulted, her death. Nor are we asked to decide the question in the context of a claim of diminished capacity, where mental illness or other impairment is asserted to have limited the suicide victim‘s ability to appreciate her peril or encounter it purposely.1 The certified question concerns a plaintiff who, in the Circuit Court‘s words, “voluntarily . . . invited the particular harm that occurred.” Id. at 263, 98 F.3d at 1426.
We hold as a matter of law that the doctrine of last clear chance may not be invoked in that situation.2
I.
“The last clear chance doctrine enables a plaintiff to recover despite [her] contributory negligence.” District of Columbia v. Huysman, 650 A.2d 1323, 1326 (D.C.1994) (emphasis added). Under the doctrine,
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 of 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 plaintiff‘s danger and of her oblivi[ousness] to it or her inability to extricate herself frоm 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 plaintiff‘s inability to extricate herself from it, but failed to do so.
Felton v. Wagner, 512 A.2d 291, 296 (D.C.1986) (citing cases) (emphases added). To state the doctrine is thus to recognize, at the outset, that applying it to a plaintiff who was not merely negligent or even reckless, but who instead intended the very harm that befell her, would take it well beyond its normal application. Stated differently, the doctrine presupposes a plaintiff who, unlike Ms. Johnson, was oblivious to her peril or at least would have wanted to extricate herself from it if able to do so. See Johnson II, supra, 321 U.S.App.D.C. at 263, 98 F.3d at 1426.3 Although the certified question is one
WMATA as defendant contends that the doctrine of assumption of risk bars plaintiff‘s 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 thе voluntary assumption of an unreasonable risk with contributory negligence at least in some circumstances.” Johnson II, supra, 321 U.S.App.D.C. at 263, 98 F.3d at 1426. See, e.g., Janifer v. Jandebeur, 551 A.2d 1351, 1352 (D.C.1989); Scoggins v. Jude, 419 A.2d 999, 1004 (D.C.1980). But, as we have already seen, this case does not concern contributory negligence. (The trial court instructed the jury that Ms. Johnson was contributorily negligent as a matter of law.). And even assumption of risk provides a loose fit considering that Ms. Johnson went beyond passive awareness and acceptance of a risk: she intended the very harm that befell her. Yet assumption of risk does furnish us guidance because it deals with the plaintiff‘s intentional, not merely negligent, exposure to a known danger, see LEE & LINDAHL, MODERN TORT LAW, supra, § 10.04, at 271, and it explains the legal consequence: “Because [s]he elects to proceed in the face of a known danger, the plaintiff is regarded as having consciously relieved the defendant of any duty which he otherwise owed the plaintiff.” Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C.1985). For this reason, we have recognized that the doctrine may bar recovery even when contributory negligence does not.
In Martin v. George Hyman Constr. Co., 395 A.2d 63 (D.C.1978), for example, we held that the contributory negligence of a wage earner did not bar recovery for an accident stemming from an employer‘s breach of a statutory duty to provide reasonably safe working conditions. Id. at 71. The statute embodied a legislative judgment to “impose[] upon employers the sole responsibility for avoiding those accidents.” Id. at 70. At the same time, we held that assumption of risk would bar recovery where the employer proved that the wage earner voluntarily spurned a safe alternative to encountering the risk and did so “with willful, wanton, or reckless disregard for his own safety.” Id. at 74. In that event “the defense operates to relieve [the defendant of] ‘all legal duty . . . to the plaintiff.‘” Id. at 71 (citation omitted). See also East Penn Mfg. Co. v. Pineda, 578 A.2d 1113, 1118-19 (D.C.1990) (“Contributory negligence is not a defense to a strict liability claim, but assumption of the risk bars recovery under either [negligence or strict liability].“)
Applying these principles, Ms. Johnson did not merely act in reckless disregard of her safety, she purposely invited the harm that resulted. She thereby relieved WMATA 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 bоth in his primary negligence and in failing to take the last clear chance.4 However, there is widespread authority for
A plaintiff whose conduct is in reckless disregard of [her] own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff‘s safety is a legal cause of the plaintiff‘s harm.
Comment c explains:
In general, the effect of the plaintiff‘s 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 plaintiff‘s 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 plaintiff‘s safety. The greater fault in the one case 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, 267 F.2d 725, 728 (2d Cir.1959) (noting “considerable authority” that despite availability otherwise of last clear chance doctrine, “contributory recklessness having a causal relation to an accident is an effective bar to an action based on recklessness“); Handley v. Halladay, 92 N.M. 76, 582 P.2d 1289, 1290 (1978) (citing cases) (“A plaintiff who is so reckless as to be in disregard of [her] own safety cannot be protected by the doctrine [of last clear chance].“). But this case does not even require us to decide the issue of reckless conduct by a plaintiff balanced against reckless conduct of a defendant. Plaintiff has cited no authority, and we have found none, that would apply last clear chance to a plaintiff‘s conduct deliberately intended to bring about the harm another inflicts, either negligently or recklessly. Volenti non fit injuria (“to the willing no injury is done“).
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., 588 A.2d 708, 712 (D.C.1991). Absolving it of a duty to a person—legally a trespasser—who jumps into the path of an oncoming train to commit suicide leaves that obligation fully intact. Further, conceding as we do that one aim of tort law is to deter negligent (and certainly reckless) behavior by actors such as WMATA‘s train operator, any deterrence achieved by extending tort protection to a victim who deliberately invites the harm incurred would be negligible. In the brief interval available to a train operator under the last clear chance doctrine, there is no time to determine the circumstances which placed the victim at risk, including her degree of fault (i.e., whether faultless, negligent, reckless, or intending the injury); the nearly conclusive assumption guiding the driver‘s conduct will be his accountability to the victim at least for recklessness. See note 4, supra. And, too, the intoxicated train operator faces criminal sаnctions, see
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., 901 F.Supp. 1, 3 (D.D.C.1995); see also Johnson II, 321 U.S.App.D.C. at 263, 98 F.3d at 1426 (“Allowing an individual to recover for injuries she has actively invited would provide an incentive—in the form of expected compensation for her heirs if not for herself—for a suicidal or financially desperate person to act upon her self-destructive impulses.“). It is no answer to say that no studies have shown this to be a factor in suicide attempts; the difficulty of proving the proposition factually—for reasons in part obvious—does not detract from its common sense. Moreover, even if this incentive were wholly speculative, we remain convinced that a tort system designed to compensate for injuries caused by the fault of others is incompatible with awarding damages for deliberately invited harm.6
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 preserve the life of a helpless victim. Cf. In re A.C., 573 A.2d 1235, 1246 (D.C.1990) (en banc) (state has parens patriae interest in “preserving life [and] preventing suicide“). But the perceived harshness of contributory negligence and the need to ameliorate it through the last clear chance doctrine are considerations very distant from this case of a deliberately invited death. Moreover, our discussion of deterrence above еxplains why we are not persuaded that the values of preserving life and deterring suicide, important though they are, would be fostered by applying last clear chance to voluntary acts of suicide; quite the contrary. Retrospective application of the doctrine to WMATA‘s train operator could not, of course, save Ms. Johnson‘s life, nor would it, for the reason stated earlier, have any appreciable effect on the behavior of WMATA drivers generally, beyond the incentives already in place.7 Last clear chance in these circumstances reduces to a gesture of compassion by the courts at the expense of someone else.
III.
Suicide is a terrible act because it extinguishes a human life and because of the suffеring 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, 527 A.2d 1269, 1275 (D.C.1987).8 Whether science one day will cast enough doubt on the volitional nature of suicide to call in question this principle is something on which we decline to speculate. We adhere to the rule of Peters,
The clerk shall certify this answer to the United States Court of Appeals for the District of Columbia Circuit.
So ordered.
WAGNER, Chief Judge, 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 plaintiff‘s 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.
RUIZ, Associate Judge, 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, 699 A.2d 404 (D.C. 1997), vacated, 704 A.2d 306 (D.C.1998). That Ms. Johnson initiated the events that resulted in her death is not in dispute, but it is equally clear that, but for the train operator‘s recklessness, her purpose would have been foiled. The operator‘s failure to act as required by law was the immediate cause of this suicide‘s death and his actions should be correspondingly assessed with liability for the death he occasioned.1 That result conforms with the admonitory and compensatory objectives of tort law.
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 shows 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, thе 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 peril—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 plaintiff‘s action is established, plaintiff‘s 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 рublic policy exception for express agreements to assume risk. Under traditional primary assumption of risk analysis, while a plaintiff‘s 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 plaintiff‘s own intentional conduct and is the proximate cause of plaintiff‘s injury, the defendant is liable. See Rinaldo v. N.Y. City Transit Auth., 39 N.Y.2d 285, 383 N.Y.S.2d 571, 573, 347 N.E.2d 897, 898 (1976) (applying doctrine of last clear chance to suicide attempt); Wyckoff v. Davis, 297 S.W.2d 490, 494 (Mo. 1957) (in case applying humanitarian doctrine—equivalent to last clear chance doctrine—“it is of no consequence what brings about or continues the peril, even though it be sheer hardihood or recklessness. This covers the whole range of self-exposure to peril from mere negligent inattention to utter, audacious and continuing disregard of known and avoidable danger.“) (quoting State v. Bland, 354 Mo. 868, 191 S.W.2d 660, 662 (1945) (suggesting that humanitarian doctrine extends to suicides)); Brooks v. New Albany & L. Elec. R. Corp., 280 Ky. 157, 132 S.W.2d 777, 780 (1939) (“The test is, without regard as to how she came in peril, Did the defendant‘s motorman in charge of the street car see, or could he by due care, have seen her peril and negligently fail to avoid injuring her? If so, the defendant is liable.“) (quoting Mullins v. Cincinnati N. & C. Ry. Co., 253 Ky. 156, 68 S.W.2d 790, 792 (1934)). In the few remaining jurisdictions, such as ours, where a plaintiff‘s contributory negligence precludes recovery against a defendant whose negligence also contributes to the injury, the last clear chance doctrine operates to restore some equity by recognizing the defendant‘s greater fault as the direct cause of injury, tempering the harshness of contributory negligence. See Washington Metro. Area Transit Auth. v. Johnson, supra, 699 A.2d at 407-08.
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.”
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 of 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, 61 YALE L.J. at 144 (noting that when there is such a right, the plaintiff may be contributorily negligent if the choice is negligent, but is not deemed to have voluntarily released the defendant of duty to the plaintiff) (internal footnote omitted).
II.
The majority opinion is flawed in two respects when viewed within the particular context of a suicide.3 First, it rests on the questionable assumption—without explanation as to whether it would make a difference to its underlying analysis of voluntariness—that Ms. Jоhnson‘s suicide was a knowing intentional act. That assumption is doubtful on this record, which shows that Ms. Johnson had a history of serious mental illness requiring numerous hospitalizations. If failure to preserve the record in this regard is the only reason why the majority does not deal with the potential impact of diminished capacity on the voluntariness of the plaintiff‘s action, the majority‘s answer to the certified question is likely to provide limited legal guidance, as it is easy to envision that future litigants will have learned the lesson of how to conduct future trials so as to raise doubts about the suicide‘s mental state.4
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 “voluntariness” оf 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 purposes 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, 383 N.Y.S.2d at 572, 347 N.E.2d at 898 (noting in a case where the plaintiff was struck by a subway train that “the presumption against suicide where death results from violence is well established in” New York). Our society‘s condemnation of suicide carries with it the evident thought that it is an unreasonable and hurtful act, taken in desperation. To the extent that certain exceptions are permitted, for example, to relieve from liability a physician who withholds or withdraws life sustaining procedures or assists in suicide, they are created pursuant to legislative determination that under certain circumstances suicide is considered within the sphere of personal and private decisions that should be allowed, and are strictly limited to those situations where
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 plaintiff‘s fault for her conduct is likеly 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
III.
The majority closes with a quote from District of Columbia v. Peters, 527 A.2d 1269 (D.C.1987), that “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,” 527 A.2d at 1275 (emphasis added). Our decision in Peters does not support the majority‘s conclusion that “last clear chance may not be employed to restore liability in another for plaintiff‘s suicidal act.” Ante at 178. What Peters holds is simply that a suicide attempt will normally break the causal chain “between any negligent act committed earlier [by the defendant] and the suicide victim‘s injury.” Johnson v. Washington Metro. Area Transit Auth., 280 U.S.App.D.C. 53, 59, 883 F.2d 125, 131 (1989). The important exception noted in Peters for situations where the defendant‘s negligence produces the condition that results in suicide, see Peters, supra, 527 A.2d at 1276, rеcognizes that, in certain cases, the defendant‘s negligence can be the proximate cause of the suicide and, therefore, actionable in tort. In this case there is no antecedent liability of the train operator that is sought to be “restored” by the doctrine of last clear chance. The act of suicide in this case, unlike the suicide in Peters, was not an intervening act between the defendant‘s negli-
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 achieved it by her chosen means. But cf.
John W. NOLEN, II, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
No. 97-CV-854.
District of Columbia Court of Appeals.
Submitted Dec. 8, 1998. Decided March 4, 1999.