United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 1997 Decided February 10, 1998
No. 96-7228
Mary Jo Smith,
Appellee/Cross-Appellant
v.
Washington Sheraton Corporation,
Appellant/Cross-Appellees
Consolidated with
No. 96-7238
Appeals from the United States District Court
for the District of Columbia
(94cv01472)
---------
Edward J. Lopata argued the cause and filed the briefs for
appellant/cross-appellees.
Stephen V. Wehner argued the cause and filed the briefs
for appellee/cross-appellant.
Before: Wald, Williams, and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Dissenting opinion filed by Circuit Judge Williams.
Randolph, Circuit Judge: On June 2, 1993, the plaintiff,
Mary Jo Smith, sustained head injuries when she fell off a
ramp leading from a parking garage into a lobby of the
Washington Sheraton Hotel. Invoking the district court's
diversity jurisdiction, 28 U.S.C. s 1332, Smith named as
defendants responsible for the condition of the ramp ITT
Sheraton Corporation; Washington Sheraton Corporation;
Sheraton Operating Corporation; Woodley Road Associates,
Inc.; John Hancock Mutual Life Insurance Company; and
Sumitomo Life Realty.1 At the close of all the evidence, the
attorney jointly representing these six defendants moved for
judgment as a matter of law. See Fed. R. Civ. P. 50(a). The
district court granted the motion except with respect to
Washington Sheraton Corporation, which became the sole
remaining defendant. The jury found Washington Sheraton
Corporation guilty of negligence and awarded Smith $175,000.
Thereafter, Washington Sheraton Corporation renewed its
motion for judgment as a matter of law or a new trial or
remittitur, arguing that Smith had failed to present any
evidence showing who owned or controlled the ramp. See
Fed. R. Civ. P. 50(b) and 59. The district court denied the
motion.
In its appeal, Washington Sheraton Corporation raises
sufficiency of the evidence and, in the alternative, seeks a new
__________
1 The district court granted judgment as a matter of law in
favor of a seventh defendant, Doggett Enterprises, Inc., the opera-
tor of the Sheraton Parking Garage. Smith does not appeal this
order.
trial on the basis of the "egregious conduct" of plaintiff's
counsel. Brief for Appellant at 17. Smith cross-appeals from
the judgment in favor of the five other defendants.
The governing legal principles are well known. Our review
of district court decisions on motions for judgment as a
matter of law is de novo. We consider all evidence in the
light most favorable to the nonmoving party. See Scott v.
District of Columbia, 101 F.3d 748, 752-53 (D.C. Cir. 1996).
We do not assess the weight of the evidence, only its suffi-
ciency. The jury's verdict will stand unless "the evidence and
all reasonable inferences that can be drawn therefrom are so
one-sided that reasonable men and women could not disagree
on the verdict." Id. at 753. But the evidence must be "more
than merely colorable"; it must be "significantly probative."
Siegel v. Mazda Motor Corp., 878 F.2d 435, 437 (D.C. Cir.
1989).
Because this is a diversity case, the substantive tort law of
the District of Columbia controls. See Joy v. Bell Helicopter
Textron, Inc., 999 F.2d 549, 553 (D.C. Cir. 1993). The
standard of care owed by an owner or occupier of land is
"reasonable care under all of the circumstances." Sandoe v.
Lefta Assocs., 559 A.2d 732, 738 (D.C. 1988). To recover
against either an owner or occupier of land, the plaintiff must
show "that the defendant had notice--either actual or con-
structive--of the present existence of an allegedly dangerous
condition." Croce v. Hall, 657 A.2d 307, 311 (D.C. 1995).
While generally a landlord is not responsible for injuries
caused by conditions developing after the lessee takes posses-
sion, a third party may recover against the lessor or landlord
of a property leased for public purposes if the party demon-
strates that the injury was caused by a "condition existing
when the lessee took possession" and that the lessor "knew or
should have known of the condition and realized or should
have realized the unreasonable risk" involved. Restatement
(Second) of Torts s 359 (1965); see also Daly v. Toomey, 212
F. Supp. 475, 478-79 (D.D.C. 1963), aff'd sub nom. Muldrow
v. Daly, 329 F.2d 886 (D.C. Cir. 1964); Hilleary v. Earle
Restaurant, Inc., 109 F. Supp. 829 (D.D.C. 1952). A party
who operates the premises but is neither the owner nor the
lessee may also have a duty of reasonable care. See F.W.
Woolworth Co. v. Stoddard, 156 A.2d 229 (D.C. 1959).
I
We will take up first Smith's claim that the district court
erred in granting judgment for Sheraton Operating Corpora-
tion. Counsel for the six defendants told the court: "[W]e
would move for judgment as a matter of law as to all six of
the defendants that I am representing because there is a
complete lack of evidence in the plaintiff's case as to which, if
any, of these corporations own" the hotel. Trial Transcript at
967. Defense counsel then acknowledged that one witness
had testified to working for the Sheraton Operating Corpora-
tion and so he assumed "for all the other five defendants, our
motion should be granted." Id. at 1014. The court respond-
ed: "[T]he only possible defendant that the plaintiffs [sic]
have brought to the attention of the jury may be the Wash-
ington Sheraton Corporation ... everyone other than Wash-
ington Sheraton Corporation is out of the case." Id. at 1079-
80.
Given this exchange, the court must have meant to keep
Sheraton Operating Corporation in the case and to grant
judgment for the other five defendants, including Washington
Sheraton Corporation. The only evidence of ownership or
control brought to the jury's attention related to Sheraton
Operating Corporation. A witness for the plaintiff had testi-
fied that he was the director of engineering at the Washing-
ton Sheraton Hotel and was employed by Sheraton Operating
Corporation. He further testified that the engineering de-
partment was responsible for the maintenance of ramps lead-
ing from the garage to the hotel.
Because there was evidence of Sheraton Operating Corpo-
ration's control of the premises, it should not have been
removed from the case for lack of such evidence. The court
plainly intended for it to remain, although the order stated
something quite different. We therefore reverse and remand
for a new trial against Sheraton Operating Corporation.
II
We shall deal next with appellant Washington Sheraton
Corporation. In the confusion caused by the similarity of the
defendants' names, it alone wound up before the jury. On
appeal, Washington Sheraton Corporation argues that the
district court erred in submitting the case to the jury because
Smith "failed to introduce evidence of who owned or con-
trolled the ramp." Brief for Appellant at 7. Washington
Sheraton Corporation points out, correctly, that the only
defendant mentioned in trial testimony was Sheraton Operat-
ing Corporation. Id. at 5. In other words, because the
evidence implicated only Sheraton Operating Corporation, the
verdict against Washington Sheraton Corporation cannot
stand.
We believe Washington Sheraton Corporation's post-trial
motion for judgment as a matter of law should have been
granted, but for a reason other than the one just mentioned.
Smith's case failed not on the element of ownership or
control--as we shall discuss in a moment--but on the element
of knowledge. Smith presented no evidence that Washington
Sheraton Corporation knew or should have known of the
allegedly dangerous condition of the ramp. See Croce, 657
A.2d at 311. Judgment as a matter of law may be rendered if
one party fails to present evidence on a material issue. See
Ferguson v. F.R. Winkler GMBH & Co., 79 F.3d 1221 (D.C.
Cir. 1996); McFarlane v. Caterpillar, Inc., 974 F.2d 176 (D.C.
Cir. 1992).
Having concluded that the district court erred in denying
Washington Sheraton Corporation's motion for judgment as a
matter of law, we have three choices. We may enter judg-
ment for that party, or we may order a new trial, or we may
remand the case to the district court to determine whether a
new trial is appropriate. See Scott, 101 F.3d at 760 (citing
Neely v. Martin K. Eby Constr. Co., 386 U.S. 317, 329 (1967));
see also Fed. R. Civ. P. 50(d). For the reasons next discussed,
we order a new trial.
A. The Pretrial Order
Washington Sheraton Corporation defended at trial, and
again on appeal, on the basis that there was a "total lack of
proof" of its ownership or control of the hotel. Trial Tran-
script at 1003; see also Brief for Appellant at 9. But this
ignores the pretrial order in the case, an order designed to
"control the subsequent course of the action." Fed. R. Civ. P.
16(e). Smith's pretrial statement described the defendants as
"all either owners, operators, or parent corporations of the
Washington Sheraton Hotel." The Sheraton defendants' pre-
trial statement stated that Sheraton Operating Corporation
"operates the Sheraton Washington Hotel pursuant to a
management agreement with Woodley Road Associates.
Woodley Road Associates leases the Sheraton Washington
Hotel from 2660 Woodley Road Joint Venture." The Joint
Venture consists of John Hancock Mutual Life Insurance
Company, Sumitomo Life Realty, and Washington Sheraton
Corporation.2 See Defendants' Answer to First Amended
Complaint. Under the heading "Statement of Defenses," the
Sheraton defendants listed four defenses which are so brief
they may be set out in their entirety.
1. Plaintiff's claim is barred by her contributory negli-
gence in failing to see and heed the clear warning sign on
the door leading to the elevator lobby on the third floor
of the Park Tower.
2. Plaintiff cannot show how the accident occurred be-
cause she has no recollection of how it actually happened
and therefore she cannot prove proximate cause, which is
an essential element of her claim.
3. There is no evidence of wanton or reckless conduct to
support a claim of punitive damages.
__________
2 In the pretrial statement, counsel for the Sheraton defendants
described the joint venture as being comprised of "Sumitomo Life
Realty (N.Y.), Inc., John Hancock Mutual Life Insurance Company,
and ITT Sheraton Corporation." This seems to be an error. In
the Answer and in the Response to Interrogatories, the partners in
the joint venture are listed as John Hancock, Sumitomo, and
Washington Sheraton Corporation.
4. Plaintiff's damage claims are not supported by com-
petent evidence.
After exchanging these pretrial statements, the parties ap-
peared for a pretrial conference. On October 5, 1995, seven
weeks before trial, a magistrate judge entered a final Rule
16(e) pretrial order. The order stated that the parties'
pretrial statements were "incorporated herein" and that the
defendants "are the owners, operators, and parent corpora-
tions of the hotel." At no point in these proceedings did the
Sheraton defendants dispute their ownership or control of the
hotel and its parking facility.
A Rule 16 pretrial order "conclusively establish[es] the
issues of fact and law in the case," United States v. Houg-
ham, 364 U.S. 310, 315 (1960), thereby "lessening the oppor-
tunities for surprise" and "expediting the trial." Rosden v.
Leuthold, 274 F.2d 747, 750 (D.C. Cir. 1960). See also
Lankford v. Idaho, 500 U.S. 110, 120 (1991); 6A Charles A.
Wright et al., Federal Practice and Procedure s 1527 (2d ed.
1990). Failure to comply with a pretrial order can give rise
to sanctions. See Rule 16(f). While a pretrial order may be
modified "to prevent manifest injustice," Rule 16(e), the de-
fendants in this case never sought a modification. Smith was
entitled to rely on the parties' pretrial statements and the
pretrial order to inform her of "precisely what [was] in
controversy." Erff v. Markhon Indus., Inc., 781 F.2d 613,
617 (7th Cir. 1986); see also Pierce County Hotel Employees
& Restaurant Employees Health Trust v. Elks Lodge,
B.P.O.E. No. 1450, 827 F.2d 1324, 1329 (9th Cir. 1987).
The plaintiff in a premises liability action must prove the
defendant owned or controlled the property. But a defendant
waives any objection on this score if the defendant fails to
raise lack of ownership or control as a defense in the face of
the plaintiff's pretrial statement clearly asserting the con-
trary. As the court said in Morro v. City of Birmingham, a
"defendant can waive a potential defense by failing to ensure
that the issue is clearly preserved in the pretrial order." 117
F.3d 508, 515 (11th Cir. 1997). See Correa v. Hospital San
Francisco, 69 F.3d 1184, 1195 (1st Cir. 1995); Fed. R. Civ. P.
16(c) advisory committee's note. Even a prima facie element
of the plaintiff's case may be removed from dispute in this
manner. See Romero Reyes v. Marine Enter., Inc., 494 F.2d
866 (1st Cir. 1974). Furthermore, Local Rule 209 requires a
party's pretrial statement to contain a statement of defenses
raised by that party, including "defenses raised by way of
general denial, without regard to which party has the burden
of persuasion." D.D.C.R. 209(b)(4).
The pretrial statements and the resulting order are consis-
tent with other representations the Sheraton defendants
made during the course of litigation. Responding to interrog-
atories, Sheraton Operating Corporation stated: "2660 Wood-
ley Road Joint Venture is the owner of the Sheraton Wash-
ington Hotel." In their motion in limine, the defendants,
referring to themselves as "collectively 'Sheraton,' " stated
that "Sheraton as the owner of the premises satisfied its duty
to plaintiff."
Thus the district court's grant of judgment in favor of five
of the six defendants was erroneously predicated on the
ground that Smith had failed to prove ownership or control
when the pretrial order had relieved Smith from the burden
of proving this.
B. The Conduct of Defense Counsel
As we have described, defense counsel's motion for judg-
ment on behalf of five of his clients included Washington
Sheraton Corporation. Counsel explicitly acknowledged that
there had been testimony concerning Sheraton Operating
Corporation. He then stood silent as the court inadvertently
granted judgment in favor of Sheraton Operating Corporation
but kept Washington Sheraton Corporation in the case. De-
fense counsel no doubt viewed this development with glee.
Every attorney likes to try a case with a net, to have a sure
basis for reversal if the jury finds against his client. On the
other hand, plaintiff's attorney also said nothing to correct
the court's misstatement. Why he did not speak up is a
mystery to us.
At any rate, there is a good reason not to reward the
defense for the confusion that ensued. Defense counsel
represented to the district court that there was "a total
vacuum as to who owns the Sheraton Operating Corporation,
who owns the Sheraton Hotel, what partners are involved in
it," see Trial Transcript at 1003. At oral argument in this
court, defense counsel maintained that his Answer denied
ownership and control 3 while it acknowledged the leasing
arrangement of the hotel.4 Clearly someone owned the hotel
and the universe of all possible owners seems to have been
the defendants. When we asked about this, defense counsel
__________
3 Plaintiff's First Amended Complaint alleged:
11. The defendant ITT Sheraton Corporation owns defendant
Washington Sheraton Corporation and the Sheraton Operating
Corporation.
12. Defendant Washington Sheraton Corporation, defendant
John Hancock Mutual Life Insurance Company, and defendant
Sumitomo Life Realty are partners in an entity known as 2660
Woodley Road Joint Venture, through which they own the
Sheraton Washington Hotel and the Sheraton Parking Garage.
13. 2660 Woodley Joint Venture leases the Sheraton Washing-
ton Hotel to defendant Woodley Road Associates, Inc., which in
a joint agreement with Sheraton Operating Corporation, oper-
ates the Sheraton Washington Hotel.
The Sheraton Defendants submitted two Answers, identical in the
following paragraphs:
11. Admitted.
12. & 13. The Sheraton Washington Hotel is leased by Wood-
ley Road Associates, Inc. and operated by Sheraton Operating
Corporation. The leasee [sic] is a tenant under a lease from
2660 Woodley Road Joint Venture which is comprised of John
Hancock Mutual Life Insurance Company, Sumitomo Life Re-
alty, and Washington Sheraton Corporation. The remainder of
the allegations are denied.
4 Of course, a negligence action may lie against a defendant
who is the lessor rather than the owner of property. And an
admission that one is the lessor of property is not a denial that one
is also the owner of the property.
responded that he did not know who owned the hotel, that he
never asked any of his Sheraton clients whether they did, that
he never investigated the subject. In other words, on his
interpretation of the pleading, he filed an answer denying his
clients' ownership without knowing whether the denial had
any evidentiary foundation. There is a rule against such
practices. Federal Rule of Civil Procedure 11(b)(4) provides
that in pleadings and other representations to the court, an
attorney is certifying that "denials of factual contentions are
warranted on the evidence or, if specifically so identified, are
reasonably based on a lack of information or belief."
C. The Defect in Proof May be Remediable
Our final reason for ordering a new trial rather than
judgment for Washington Sheraton Corporation is that we
believe Smith's failure of proof on the element of whether
defendants knew or should have known about the ramp's
condition may be remedied. In Neely v. Martin K. Eby
Construction Co., the Supreme Court stated that when "the
court of appeals sets aside the jury's verdict because the
evidence was insufficient to send the case to the jury, it is not
so clear that the litigation should be terminated." 386 U.S. at
327. In considering a post-verdict motion for judgment as a
matter of law, a district court has discretion to order a new
trial rather than grant judgment "if it believes that the defect
in the nonmoving party's proof might be remedied on a
second trial." 9A Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure s 2538, at 357 (2d ed. 1994).
An appellate court has no less discretion. See id. s 2540; see
also Network Publications, Inc. v. Ellis Graphics Corp., 959
F.2d 212 (11th Cir. 1992). While not all cases involving
insufficiency of evidence deserve a new trial, the matters we
have already mentioned make a new trial the appropriate
remedy here.
III
With respect to cross-appellees John Hancock Mutual Life
Insurance, Sumitomo Life Realty, and Woodley Road Associ-
ates, we also vacate the judgment in their favor and remand
for a new trial. The court's judgment rested on the proposi-
tion that Smith had introduced no evidence of their ownership
or control of the hotel. As we have discussed, that issue was
conceded by the parties' pretrial statements and the pretrial
order. Defendants' pretrial statement described John Han-
cock and Sumitomo as partners in 2660 Woodley Road Joint
Venture, and stated that "Woodley Road Associates leases
the Sheraton Washington Hotel from 2660 Woodley Road
Joint Venture." Thus the reasons the court gave for its
judgment do not support it.
Smith's case did suffer a complete lack of evidence on the
element that these defendants had notice of the allegedly
defective condition of the ramp, but for reasons already
mentioned we believe it appropriate to remand for a new
trial. Had the district court been alerted to the absence of
evidence of knowledge and decided to grant the defendants'
Rule 50(a) motion on that ground, it would have had discre-
tion instead to grant plaintiff a dismissal without prejudice.
See 9A Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure s 2533, at 318; see also Cone v. West
Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947).
The grant of judgment in favor of ITT Sheraton Corpora-
tion is another matter entirely. We affirm that judgment
because, as a corporate owner of Washington Sheraton Cor-
poration and Sheraton Operating Corporation, see Defen-
dants' Answer p 11, ITT Sheraton Corporation is not liable
for harm caused by a condition on property belonging to its
subsidiaries. As Smith conceded at oral argument, no at-
tempt was made at trial to pierce the corporate veil. The law
in the District of Columbia is that "the acts and obligations of
the corporate entity will not be recognized as those of a
particular person until the party seeking to disregard the
corporate entity has proved by affirmative evidence that
there is (1) unity of ownership and interest and (2) use of the
corporate form to perpetrate fraud or wrong." Vuitch v.
Furr, 482 A.2d 811, 815 (D.C. 1984); see also Camacho v.
1440 Rhode Island Ave. Corp., 620 A.2d 242, 248 (D.C. 1993).
Nor can ITT Sheraton Corporation be held liable as an owner
of the property where the injury occurred. It is a fundamen-
tal principle of corporate law that "[t]he owner of the shares
of stock in a company is not the owner of the corporation's
property." Rhode Island Hosp. Trust Co. v. Doughton, 270
U.S. 69, 81 (1926). In Office of People's Counsel v. Public
Service Commission of the District of Columbia, 520 A.2d 677
(D.C. 1987), the Court of Appeals for the District of Columbia
ruled that a holding company which owned all the stock in
three parent corporations had no legal interest in the taxicabs
which were the property of those corporations. The court
there explained:
Ownership of stock by one corporation in another does
not create an identity of corporate interest between the
two companies, nor render the stockholding company the
owner of the property of the other. Even complete
ownership of all outstanding stock of a corporation is not
the equivalent of ownership of a subsidiary's property or
assets, because a parent and subsidiary comprise two
wholly separate entities with individual property rights.
Id. at 681 (quoting 18A Am. Jur. 2d Corporations s 751
(1985)). Thus ITT Sheraton Corporation, despite its owner-
ship of the companies that leased and operated the hotel, did
not own the hotel.
IV
We reject the additional points of error raised by the
parties. Only one of the points warrants discussion--the
defense contention that Smith was contributorily negligent as
a matter of law. The theory is that a sign posted on the door
opening to the ramp--reading "Caution Watch Your Step"
with arrows pointing down--sufficiently alerted Smith to the
need to exercise a greater degree of care and that her failure
to do so rendered her contributorily negligent as a matter of
law. See Brief for Appellant at 13.
Contributory negligence is almost always a question of fact
for the jury. See Rich v. District of Columbia, 410 A.2d 528,
532 (D.C. 1979). "Only in exceptional cases, where the facts
are undisputed and where but one reasonable inference can
be drawn, is the trial court justified in holding that negligence
or contributory negligence has been established as a matter
of law." Singer v. Doyle, 236 A.2d 436, 437 (D.C. 1967); see
also Jeffries v. Potomac Dev. Corp., 822 F.2d 87, 90 (D.C. Cir.
1987).
Washington Sheraton Corporation relies on Poyner v. Lof-
tus, 694 A.2d 69 (D.C. 1997), for the proposition that a person
"must see what is reasonably there to be seen." Reply Brief
of Appellant at 7. Poyner held that a legally blind plaintiff
had failed to use reasonable care when he continued to walk
along an elevated sidewalk while turning his head to the side.
"At the critical moment, according to his own testimony,
Poyner, who could see six to eight feet in front of him and
was aware of his handicap, did not look where he was going."
694 A.2d at 71. Poyner, however, does not alter District of
Columbia law; the Court of Appeals reiterated that "[o]nly in
the exceptional case is evidence so clear and unambiguous
that contributory negligence should be found as a matter of
law." Id. (citing Tilghman v. Johnson, 513 A.2d 1350, 1351
(D.C. 1986)).
The fact that a warning sign was posted on the door
leading to the ramp does not mean that Smith's fall was the
result of her failure to exercise ordinary care. Smith's coun-
sel argued to the jury that the sign did not adequately direct
a reasonable person's attention to anything on the far side of
a closed door. See Trial Transcript at 1107. The cautionary
words with downward pointing arrows could have led a
reasonable person to believe that the danger was at the
doorsill rather than beyond, or at least a reasonable jury
could so conclude. Smith did not know, at the time she
approached the door, that it opened onto a ramp. Even had
she been aware of the ramp, "[k]nowledge alone of a condition
is insufficient to charge [her] with contributory negligence as
a matter of law." Trust v. Washington Sheraton Corp., 252
A.2d 21, 22 (D.C. 1969). In Trust, the Court of Appeals held
that although the plaintiff had noted the existence of a step
prior to her fall, the trial court erred in granting judgment
n.o.v. to the defendant. Id. When there is evidence on which
reasonable people might differ, see District of Columbia v.
Cooper, 445 A.2d 652, 655 (D.C. 1982), the issue of contributo-
ry negligence should be submitted to the jury. So here.
* * *
The judgment as a matter of law in favor of ITT Sheraton
Corporation is affirmed. The verdict against Washington
Sheraton Corporation is vacated. The judgments in favor of
Sheraton Operating Corporation, John Hancock Mutual Life
Insurance Company, Sumitomo Life Realty, and Woodley
Road Associates are reversed. The case is remanded for a
new trial against these five defendants.
So ordered.
Williams, Circuit Judge, dissenting: Except for one issue I
find myself in full agreement with the majority. Unfortu-
nately the issue--contributory negligence--is dispositive. If,
as I believe, no reasonable jury could find the plaintiff free of
contributory negligence, then all the other issues are moot.
Accordingly I dissent.
The plaintiff, wife of a U.S. Senator, drove with friends to a
lunch at the Shoreham Hotel in honor of the First Lady.
Because the parking at the Shoreham was full, she left her
friends off there, and went to park her car at the nearby
Sheraton Washington. To exit from the parking structure to
the hotel proper, she had to pass through the Exit door
shown in Exhibit 1 to this opinion (a black-and-white photo-
copy of Defendant's Trial Exhibit # 26, a color photograph).
On it, perhaps two inches below the door handle, appears a
warning sign saying,
C A U T I O N
WATCH YOUR
STEP
with five arrows pointing down.
On the hotel side of the door there is a ramp that appears
roughly symmetrical to the one on the garage side. (Plain-
tiff's Motion for Partial Summary Judgment as to Liability as
to Defendants ITT Sheraton, Sumitomo Life Realty, John
Hancock Mutual Life Insurance Company, Sheraton Operat-
ing Corporation and Woodley Road Associates, Exhibit C.) A
person going through the door directly (i.e., pursuing a course
perpendicular to the plane of the doorway) would step onto
the far ramp. Beyond the area directly aligned with the
doorway, the edge of the far ramp fell vertically to floor level,
so that for anyone who stepped to the side while entering the
hotel there was a drop of several inches--the record does not
make clear how many--at least at the end of the ramp
nearest the door frame. It was this configuration of the
ramp, and/or the absence of a handrail, that the jury found
negligent. Defendant does not dispute that it could reason-
ably do so.
Plaintiff described her fall as follows:
I ... opened the door ... with my left hand and my left
shoulder and probably my left leg and foot as well,
because it was a very heavy door, and pushed open the
door and proceeded in with my right foot. My right foot
fell off that right side of that ramp and I was catapulted
into the metal framework of the [elevator].
Joint Appendix ("J.A.") 130. In a passage from her deposi-
tion read into evidence at trial, she said
I stepped through the doorway expecting there to be a
ramp on the other side and my foot just went into--I can
only describe it as an abyss.
Id. at 267. According to plaintiff's testimony, she was able to
see the "Exit" sign by the door "easily," and the lighting on
the hotel side of the door was "much brighter" even than that.
Trial transcript at 1024, 1027.
I do not believe a reasonable jury could have found that
someone leaving the parking garage through this exit could
have suffered the accident that befell plaintiff if she exercised
reasonable care in light of the prominent "Caution" sign.
First, a person exercising reasonable care would see the sign,
right next to the door handle and in very bold lettering.1
(Plaintiff testified that she did not remember seeing it. J.A.
270.) Plaintiff's counsel evidently assumed the sign's visibili-
ty, arguing instead to the jury that it failed to direct attention
to any danger on the other side of the door. Trial transcript
at 1107. But this depends on an odd construction of the sign.
Counsel's idea evidently was that it directed the reader's
attention only to hazards before the door, which she could see
before she touched it, and perhaps to hazards directly be-
neath the door, but not at all to hazards just beyond the door.
____
1In the color photo contained in the Joint Appendix the sign gives
off an iridescent glow, but trial testimony indicates that this may
well have overstated the sign's salience. The black-and-white pho-
tocopy appears to cancel that overstatement.
I cannot see how the sign means anything other than for the
patron to proceed with caution both as she approaches and as
she steps through the door. This includes the first steps she
takes on the other side. Of course, under special circum-
stances a reasonable person might disregard the warning, say
if she were pursued by a thug. But plaintiff suggested no
such extreme circumstances.
In its recent decision in Poyner v. Loftus, 694 A.2d 69 (D.C.
1997), D.C.'s Court of Appeals made clear that in its view
proof of contributory negligence as a matter of law is not just
a once-in-a-blue-moon event. In Poyner, the plaintiff, legally
blind but able to see about six to eight feet in front of him,
was on a walkway elevated four feet above the street level
and lacking guardrails. Shrubs normally acted as a (modest)
barrier to persons' falling off the walkway, but on the day in
question one was missing, as Poyner noticed. Distracted by
someone calling out his name, and failing to take the precau-
tions indicated by the absence of the protective shrub, Poyner
walked over the edge and suffered injuries. The court found
his conduct contributorily negligent as a matter of law. In
our case, similarly, plaintiff "failed either to look at all or to
look observantly and see what should have been plainly
visible." Poyner, 694 A.2d at 71 (quoting Singer v. Doyle,
236 A.2d 436, 438 (D.C. 1967)).
The majority is, of course, correct that negligence and
contributory negligence are only rarely established as a mat-
ter of law, see Maj. Op. at 12-13 (citing Singer v. Doyle, 236
A.2d 436, 437 (D.C. 1967)), and that Poyner wrought no
change in District of Columbia law, id. at 13. But Poyner
dramatically illustrates the District's idea of reasonable care
and its insistence on real, not rubber-stamp, superintendence
of the jury. To be true to the District's substantive law,
which controls our review of the district court's decision on
the motion for a directed verdict, Ferguson v. F.R. Winkler
GMBH & Co. KG, 79 F.3d 1221, 1224 (D.C. Cir. 1996), we
should reverse for failure to grant the motion.
Exhibit 1
[Photograph not available electronically.]