Johnson v. Washington Metropolitan Area Transit Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed March 26, 1999

No. 95-7254

Eleanor T. Johnson, et al.,

Appellees

v.

Washington Metropolitan Area Transit Authority,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 86cv03110)

Following Certification of Question of Law to the

District of Columbia Court of Appeals

Before: Wald, Williams, and Ginsburg, Circuit Judges.

J U D G M E N T

PER CURIAM.

In 1986, of her own volition and intending to commit
suicide, Devora Johnson jumped from a subway station plat-
form into the path of an oncoming WMATA train and was
killed. Her parents brought a wrongful death action against
the WMATA and ultimately obtained a jury verdict in their
favor. The jury found that the WMATA had the last clear

chance to save Ms. Johnson and that the train operator acted
willfully or wantonly in his operation of the train. See
Johnson v. WMATA, 98 F.3d 1423, 1424-25 (D.C. Cir. 1996).

The WMATA moved for judgment as a matter of law,
which the district court denied, and then filed this appeal,
arguing that the Johnsons are barred from recovering under
the doctrine of "last clear chance" because Ms. Johnson had
assumed the risk of death by jumping onto the tracks.
Because we were unable to find a controlling District of
Columbia precedent on this point, we certified the following
question to the District of Columbia Court of Appeals:

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, 98 F.3d at 1424.

The District of Columbia Court of Appeals has answered
the question in the negative. See WMATA v. Johnson, No.
96-SP-1784 (Mar. 3. 1999). The court held that Ms. Johnson
"purposely invited the harm .... [and] 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." Id.
at slip op. 6; see also id. at slip op. 8 ("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. Violenti non fit injuria ('to the willing no injury
is done')"). The court concluded that the doctrine of "last
clear chance may not be employed to restore liability in
another for a plaintiff's suicidal act." Id. at slip op. 11.

Because D.C. law does not allow the Johnsons to recover
under the doctrine of last clear chance, it is

ORDERED and ADJUDGED that the judgment of the
district court from which this appeal has been taken be

REVERSED and that judgment as a matter of law be
entered for the appellant. It is

FURTHER ORDERED, on the court's own motion, that
the Clerk shall withhold issuance of the mandate herein until
seven days after disposition of any timely petition for rehear-
ing. See D.C. Cir. R. 41(a)(1). This instruction to the clerk
is without prejudice to the right of any party at any time to
move for expedited issuance of the mandate for good cause
shown.