United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2007 Decided March 27, 2007
No. 06-7037
JUDITH C. BRIGGS, PERSONAL REPRESENTATIVE
FOR THE ESTATE OF GREGORY DERRINGER, DECEASED,
APPELLANT
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01876)
Calvin Steinmetz argued the cause for appellant. With him
on the briefs was Thomas Lester.
John J. Hathway and Andrew J. Marcus argued the cause
for appellees Washington Metropolitan Area Transit Authority,
et al. With them on the brief were Michael C. Gartner, Keith M.
Bonner, and Andrew Butz.
James C. McKay, Jr., Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellee District of Columbia. With him on
the brief were Robert J. Spagnoletti, Attorney General at the
2
time the brief was filed, Todd S. Kim, Solicitor General, and
Edward E. Schwab, Deputy Attorney General.
Before: ROGERS and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
EDWARDS, Senior Circuit Judge: Judith C. Briggs filed a
wrongful death and survival action seeking to recover damages
from the Washington Metropolitan Area Transit Authority
(“WMATA” or “Metro”), the District of Columbia (“District”),
the Washington Convention Center Authority (“Authority”),
Clark Construction Company (“Clark”), and Sherman R. Smoot
Company (“Smoot”) after an unknown assailant murdered her
son near the top of the escalators at a Metro station in
Washington, D.C. Under D.C. law, a plaintiff alleging
negligence “‘has the burden of proving . . . the applicable
standard of care, a deviation from that standard by the
defendant, and a causal relationship between the deviation and
the . . . injury.’” Varner v. District of Columbia, 891 A.2d 260,
265 (D.C. 2006) (quoting District of Columbia v. Wilson, 721
A.2d 591, 597 (D.C. 1998)); accord Butera v. District of
Columbia, 235 F.3d 637, 659 (D.C. Cir. 2001). “Where an
injury is caused by the intervening criminal act of a third party,
. . . liability depends upon a more heightened showing of
foreseeability than would be required if the act were merely
negligent.” District of Columbia v. Beretta, U.S.A., Corp., 872
A.2d 633, 641 (D.C. 2005) (en banc) (internal quotation marks
omitted).
Before the District Court, appellees moved for summary
judgment on the grounds that Briggs had both failed to establish
foreseeability and demonstrate an applicable standard of care.
The District Court granted appellees’ motion, holding that
Briggs had not satisfied the requirement of a heightened
showing of foreseeability. Briggs v. WMATA, Civ. No. 01-1876
(D.D.C. Mar. 6, 2006), reprinted in Joint Appendix (“J.A.”)
627-38. On appeal, Briggs argues that summary judgment for
3
appellees was unwarranted, because she made out a prima facie
case of negligence that was more than enough to get the case
before a jury. We disagree. We need not decide whether Briggs
failed to establish foreseeability. Rather, we hold that appellees
are entitled to summary judgment because Briggs did not offer
creditable evidence sufficient to establish a controlling standard
of care. Under D.C. law, this shortcoming is “fatal to a
negligence claim.” Scott v. District of Columbia, 101 F.3d 748,
757 (D.C. Cir. 1996). Accordingly, we affirm the grant of
summary judgment.
I. BACKGROUND
After determining that a new convention center “would
have a significant economic impact, directly and indirectly, on
the District,” the D.C. Council established the Authority and
charged it with “acquir[ing], construct[ing], equip[ping],
maintain[ing], and operat[ing] the new convention center.” D.C.
CODE §§ 10-1201.01, 10-1202.02 (2001). The Authority
contracted for construction management services with a joint
venture formed by Clark and Smoot. Because construction of
the convention center required improvements and modifications
to the Mount Vernon Square-UDC Metro Station, the Authority
also entered into an agreement with WMATA.
During construction, pedestrians could only access the
Mount Vernon Square Metro station through a walkway
separated from the street by chain link fencing. In order to
protect people from construction debris, sheets of plywood
nearly two stories high enclosed the portion of the passageway
closest to the station’s escalators. The body of Dr. Gregory
Derringer was found at approximately 1:00 a.m. on August 20,
2000, inside this plywood enclosure near the top of the
escalators at the station. It was determined that Dr. Derringer
had been murdered by a single stab wound to the heart. There
has been no arrest in connection with the murder, because all
attempts to identify the assailant have failed.
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In 2001, Dr. Derringer’s mother filed a wrongful death and
survival action in the D.C. Superior Court, alleging that
WMATA, the District, the Authority, Clark, and Smoot
breached a duty of care to take security precautions for her son’s
safety. In particular, Briggs asserted that appellees caused Dr.
Derringer’s death by leaving the plywood walls in place for too
long and failing to adequately illuminate the enclosed area
leading into the Mount Vernon Square Metro station. Briggs
argued that the plywood enclosure was only necessary during
the slurry wall construction phase of the project, which ended
prior to August 20, 2000, so the enclosure should not have been
in place when her son was killed. She also contended that
several lights within the enclosure were not working, leaving the
lighting too dim on the night of her son’s murder. WMATA
removed the case to the federal District Court.
Pursuant to Federal Rule of Civil Procedure 26(a)(2),
Briggs designated Ralph W. Witherspoon as an expert witness
on safety precautions. In his supplemental report, Witherspoon
concluded that appellees
created a security hazard . . . by erecting 16-foot high
wooden barriers . . . that afforded criminals concealment
and hiding places; also, by permitting lighting within th[e]
enclosure to fall to levels which neither created a deterrence
to criminals, nor afforded [individuals within the walkway]
the ability to discern potentially threatening persons or
situations while still at a distance. In so doing, they
violated generally accepted security practices.
Second Supplementation of Plaintiff’s 26(a)(2) Statement (filed
Jan. 1, 2005) (“Witherspoon Report”), reprinted in J.A. 547-48.
In his report and during two depositions, Witherspoon
proffered four sources of these “generally accepted security
practices.” First, he cited Crime Prevention Through
Environmental Design (“CPTED”) as “an increasingly important
5
and widely used concept in security design and practice . . . that
many security practitioners have used in their work over the
years.” Id. at 548. According to Witherspoon, the CPTED
concept focuses on “increasing visibility by occupants and
casual observers (police, others) to increase the detection of
trespassers or misconduct within the facility.” Id. (emphasis
omitted). Witherspoon also discussed “studies” demonstrating
that street lighting decreases crime. Id. at 552-53. Third,
Witherspoon referred to Occupational Safety and Health
Administration (“OSHA”) guidelines which he claimed “have
been used for years throughout the United States in addressing
robbery prevention in a wide variety of retail stores and
facilities.” Id. at 553. Specifically, Witherspoon cited two
OSHA recommendations: “Improve Visibility” and “Maintain
Adequate Lighting.” Id. (emphasis omitted). Finally,
Witherspoon referred to standards enunciated in WMATA’s
internal manuals, including specific footcandle lighting
requirements. Witherspoon offered nothing to suggest that there
are any applicable standards governing when protective fencing
should be removed from a construction site.
WMATA, the Authority, Clark, and Smoot moved for
summary judgment, asserting various governmental immunities
and arguing that Briggs failed as a matter of law to make the
heightened showing of foreseeability necessary to impose
liability for the intervening criminal act of a third party,
establish a standard of care, or prove that any lack of visibility
proximately caused Dr. Derringer’s death. The District filed a
separate motion for summary judgment on substantially the
same grounds. After considering Briggs’ detailed memoranda
responding to each of the arguments, the District Court held that
Briggs failed to carry her burden of demonstrating heightened
foreseeability. Briggs, Civ. No. 01-1876 (D.D.C. Mar. 6, 2006),
reprinted in J.A. 627-38. Since this conclusion was dispositive,
the District Court granted summary judgment for appellees
without addressing their other contentions.
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II. ANALYSIS
A. Standard of Review
Because it is undisputed that D.C. tort law controls the
disposition of this case, the duty of this court “is to achieve the
same outcome [that] would result if the District of Columbia
Court of Appeals considered this case.” Novak v. Capital Mgmt.
& Dev. Corp., 452 F.3d 902, 907 (D.C. Cir. 2006). Under D.C.
law, Briggs bore the burden of proving “that the murder was so
foreseeable that it became [appellees’] duty to guard against it
by adhering to a recognized standard of care, that [appellees]
breached that standard of care, and that the failure to exercise
due care proximately caused [Dr. Derringer’s] death.” Clement
v. Peoples Drug Store, Inc., 634 A.2d 425, 427 (D.C. 1993);
accord Novak, 452 F.3d at 907-08.
Summary judgment is appropriate where “‘there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.’” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting FED. R. CIV. P.
56(c)). “Rule 56(c) mandates the entry of summary judgment
. . . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Thus, appellees were entitled to summary judgment, if viewing
the evidence in the light most favorable to Briggs, no reasonable
jury could find that Briggs established each of the elements of
negligence. See United States ex rel. Bettis v. Odebrecht
Contractors of Cal., Inc., 393 F.3d 1321, 1327 (D.C. Cir. 2005).
We review the District Court’s grant of summary judgment
de novo, George v. Leavitt, 407 F.3d 405, 410 (D.C. Cir. 2005),
and we “may affirm . . . on a ground not relied upon by the
lower court, provided that the opposing party has had a fair
7
opportunity to [address] that ground,” Washburn v. Lavoie, 437
F.3d 84, 89 (D.C. Cir. 2006).
B. Establishment of an Applicable Standard of Care
1. WMATA Owed No Special Duty to Dr. Derringer by
Virtue of a Common Carrier/Passenger Relationship
Briggs argues that, under District of Columbia law, a
common carrier owes a special duty to protect its passengers,
and, therefore, she need only establish the foreseeability of the
harm against which she alleges WMATA failed to protect Dr.
Derringer. In other words, Briggs contends that she was not
required to put on expert testimony to establish the standard of
care in this case. In support of this position, Briggs cites
WMATA v. O’Neill, 633 A.2d 834, 840 (D.C. 1993) (“A
common carrier is required to protect its passengers against
assault or interference with the peaceful completion of their
journey.” (internal quotation marks omitted)). O’Neill relied
upon the Restatement (Second) of Torts § 314A(1)(a), which
provides, “A common carrier is under a duty to its passengers to
take reasonable action . . . to protect them against unreasonable
risk of physical harm.” Section 314A is an exception to the
Restatement’s general rule that “[t]he fact that the actor realizes
or should realize that action on his part is necessary for
another’s aid or protection does not of itself impose upon him a
duty to take such action.” The District Court rejected Briggs’
reliance on O’Neill and § 314A of the Restatement, holding that,
because Dr. Derringer’s body was found outside the Metro
station entrance, no common carrier/passenger relationship
existed between WMATA and Dr. Derringer. Briggs, Civ. No.
01-1876 (D.D.C. Mar. 6, 2006), reprinted in J.A. 633 n.7. We
agree.
The controlling case on this point is McKethean v. WMATA,
588 A.2d 708 (D.C. 1991). In that case, the D.C. Court of
Appeals held “that WMATA owed [victims who had been
8
waiting at a bus stop] no duty of care because they were not its
passengers at the time they were injured.” Id. at 712. The court
explained that “‘[u]ntil a person has placed himself in some
substantial sense in the custody or under the control of the
carrier, he is not a passenger and no special duty of care is owed
him. An intent to become a passenger is not enough to confer
that status or to charge the carrier with the duty to exercise that
degree of care owed by a carrier in the transportation of a
passenger.’” Id. (quoting Baker v. D.C. Transit Sys., Inc., 248
A.2d 829, 831 (D.C. 1969)). A similar judgment was reached in
Gillot v. WMATA, 507 F. Supp. 454 (D.D.C. 1981), where the
court held that WMATA owed no special duty to a parking lot
patron who was abducted while she was on a parking lot owned
and maintained by WMATA. See id. at 457 (“WMATA owed
the Plaintiff the same duty any parking lot owner would owe any
parking lot patron.”). O’Neill is inapposite, because the plaintiff
in that case was a passenger riding on a bus. In this case, Dr.
Derringer was neither a passenger inside a subway station, nor
a passenger riding a subway train.
Briggs argues that, because a Metro farecard was
discovered on Dr. Derringer’s body, it is fair to assume that he
intended to use the Metro. But, as the court noted in
McKethean, an intent to become a passenger is not enough to
create a common carrier/passenger relationship. See 588 A.2d
at 712. Briggs also cites Robinson v. WMATA, 676 A.2d 471
(D.C. 1996), where the court treated Robinson as a passenger
despite the fact that she had not yet actually passed through the
WMATA faregate. But the court tellingly noted that “WMATA
[had] not contended that Ms. Robinson was not a Metro
passenger to whom it owed a duty of care,” id. at 473 n.2, so the
issue was not joined in that case.
In short, Briggs cites to no authority supporting her claim
that Dr. Derringer was a WMATA “passenger” when he was
killed. He had not entered the train station and “placed himself
9
in some substantial sense in the custody or under the control of
[WMATA].” McKethean, 588 A.2d at 712; see also
Restatement (Second) of Torts § 314A cmt. c (“The rules
[covering common carriers and passengers] apply only where
the relation exists between the parties, and the risk of harm, or
of further harm, arises in the course of that relation. A carrier is
under no duty to one who has left the vehicle and ceased to be
a passenger . . . .”). Therefore, he was “not a passenger and no
special duty of care [was] owed him.” McKethean, 588 A.2d at
712.
2. Necessity of Expert Testimony
Pursuant to the “expert testimony requirement,” District of
Columbia v. Hampton, 666 A.2d 30, 35-36 (D.C. 1995), “‘[a]
plaintiff must put on expert testimony to establish what the
standard of care is if the subject in question is so distinctly
related to some science, profession or occupation as to be
beyond the ken of the average layperson,’” District of Columbia
v. Arnold & Porter, 756 A.2d 427, 433 (D.C. 2000) (quoting
Messina v. District of Columbia, 663 A.2d 535, 538 (D.C.
1995)); accord Butera, 235 F.3d at 659. “There is, however, a
partial exception to this rule,” Hampton, 666 A.2d at 35: “no
expert testimony is needed if the subject matter is within the
realm of common knowledge and everyday experience,” Hill v.
Metro. African Methodist Episcopal Church, 779 A.2d 906, 908
(D.C. 2001) (internal quotation marks omitted); accord
Daskalea v. District of Columbia, 227 F.3d 433, 445 (D.C. Cir.
2000).
Briggs argues that “safety [and] lighting . . . are matters of
common knowledge which should not even require expert
testimony.” Appellant’s Br. at 28; see id. at 35-36. “At first
blush, there is arguably some . . . appeal to [Briggs’] suggestion
that the average juror does not require advice from experts” to
determine whether lighting must be increased or plywood taken
down. Varner, 891 A.2d at 266. But such a judgment based on
10
bare intuition of this sort would be misguided. The D.C. Court
of Appeals has required expert testimony in a number of cases
that, on first blush, appear to be within the realm of common
knowledge. For example, the court has held that the following
subjects require expert guidance despite the fact that they might
be familiar to jurors: maintenance of leaning trees, Katkish v.
District of Columbia, 763 A.2d 703, 706 (D.C. 2000);
application of hair relaxer, Scott v. James, 731 A.2d 399, 400
(D.C. 1999); tightness of handcuffs, Tillman v. WMATA, 695
A.2d 94, 97 (D.C. 1997); cushioning for the ground underneath
playground monkey bars, Messina, 663 A.2d at 538;
maintenance of street lights to prevent falling light globes,
Rajabi v. Potomac Elec. Power Co., 650 A.2d 1319, 1322 (D.C.
1994); time frame for ordering building materials on a
construction project, Lenkin-N Ltd. P’ship v. Nace, 568 A.2d
474, 479 (D.C. 1990); response when an arrestee is found
hanging in his cell, Toy v. District of Columbia, 549 A.2d 1, 7
(D.C. 1988); and installation of “a crosswalk, instead of a stop
sign, light, or crossing guard,” District of Columbia v. Freeman,
477 A.2d 713, 719-20 (D.C. 1984). The case law indicates that
the “common knowledge” exception to the expert testimony
requirement is recognized only in cases in which everyday
experience makes it clear that jurors could not reasonably
disagree over the care required. See, e.g., Bostic v. Henkels &
McCoy, Inc., 748 A.2d 421, 425-26 (D.C. 2000) (holding that no
expert testimony was necessary where boards covering a half
block long and three foot wide trench were laid so as to produce
a six to seven inch gap between boards); District of Columbia v.
Shannon, 696 A.2d 1359, 1365-66 (D.C. 1997) (same where
child’s thumb was ripped out of her hand after getting caught in
an open hole in the metal handrail of a playground slide);
Jimenez v. Hawk, 683 A.2d 457, 462-63 (D.C. 1996) (same
where abandoned tank containing used motor oil led to fire).
Moreover, expert testimony is routinely required “in
negligence cases . . . which involve issues of safety, security and
11
crime prevention.” Varner, 891 A.2d at 267. For example, in
a case in which a student, who had been disciplined for various
acts of misconduct including repeated major thefts, was not
expelled and subsequently murdered two classmates, the D.C.
Court of Appeals concluded that “questions as to the
appropriateness and sufficiency of academic discipline should
not be left to a lay jury to decide without expert testimony.” Id.
Similarly, where a woman was injured as people rushed to leave
an event, the court held that “common knowledge and
experience . . . is a far cry from any experience with the process
of planning for the handling of large crowds in such
circumstances.” Hill, 779 A.2d at 910.
In light of this precedent, we are constrained to hold that
expert testimony was required in this case. While lay persons
can certainly distinguish between illumination and complete
darkness, there is nothing to indicate that common knowledge
includes a universal standard of “adequate” lighting within a
temporary construction walkway. And at what point safety
permits and requires the removal of barriers erected to protect
pedestrians is a question involving engineering determinations
that are beyond everyday experience. See Levy v. Schnabel
Found. Co., 584 A.2d 1251, 1255 (D.C. 1991) (holding expert
testimony “undisputedly” required to establish the applicable
standard of care for “sheeting, shoring and underpinning” a
building during construction). Inquiries of these sorts involve
issues of safety, security, and crime prevention with respect to
which the D.C. Court of Appeals has repeatedly found unguided
resolution by lay persons inappropriate. Whether plywood
construction fencing must be replaced with chain link fencing at
a particular time and whether the lighting provided within a
temporary construction walkway must be increased are not
“within the realm of common knowledge and everyday
experience.” Therefore, Briggs was required to “adduce expert
testimony . . . to establish the applicable standard of care.”
Varner, 891 A.2d at 265 (internal quotation marks omitted).
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3. Sufficiency of the Expert Testimony Proffered
Briggs contends that she did in fact produce sufficient
expert testimony. In support of this claim, Briggs says that
Witherspoon cited “numerous applicable written standards of
care” either widely accepted or specific to WMATA.
Appellant’s Br. at 28-35. However, a careful review of what the
law requires and what Briggs offered shows that she failed to
meet her burden.
Expert testimony
is not sufficient if it consists merely of the expert’s opinion
as to what he or she would do under similar circumstances.
Nor is it enough for the expert simply to declare that the
[defendant] violated the national standard of care. Rather,
the expert must clearly articulate and reference a standard
of care by which the defendant’s actions can be measured.
Thus the expert must clearly relate the standard of care to
the practices in fact generally followed by other comparable
. . . facilities or to some standard nationally recognized by
such units.
Clark v. District of Columbia, 708 A.2d 632, 635 (D.C. 1997)
(internal quotation marks and citations omitted). The D.C.
Court of Appeals has found “generalized references” to
standards insufficient. District of Columbia v. Moreno, 647
A.2d 396, 400 (D.C. 1994); District of Columbia v. Carmichael,
577 A.2d 312, 315-16 (D.C. 1990). The expert must proffer “a
specific, articulable (and articulated) standard of care.”
Carmichael, 577 A.2d at 315; see Phillips v. District of
Columbia, 714 A.2d 768, 773 (D.C. 1998) (“[T]he expert must
testify as to specific . . . standards and must relate them directly
to the defendant’s conduct.” (internal citation omitted)).
“Absent such testimony, the jury will be forced to engage in idle
speculation which is prohibited.” Hughes v. District of
Columbia, 425 A.2d 1299, 1303 (D.C. 1981). And articulation
13
of a specific standard is essential “[e]specially in circumstances
in which . . . the defendant is alleged to have failed to protect the
plaintiff from harm.” Varner, 891 A.2d at 269.
In this case, Witherspoon’s report and depositions, when
viewed in the light most favorable to Briggs, pointed to no
“specific standards” contained in the CPTED concept, cited
studies, or OSHA guidelines. Instead, Witherspoon’s testimony
rested on only generalized objectives. See Pannell v. District of
Columbia, 829 A.2d 474, 479-80 (D.C. 2003). The only
arguably relevant CPTED standard to which Witherspoon
pointed is denominated “increasing visibility”; the studies that
he cited merely focus on providing street lighting generally; and
the OSHA standards upon which he relied suggest that late night
retail establishments “Improve Visibility” and “Maintain
Adequate Lighting.” Witherspoon Report, reprinted in J.A. 548,
552-53 (emphasis omitted). None of these recommendations
embodies a discernible standard that is applicable to this case.
The recommendations, albeit laudatory, are too vague to allow
a jury to compare the requirements of a specific “standard” with
appellees’ conduct. In other words, the material cited by Briggs’
expert do not fix standards of behavior that can be used by a jury
to assess claims of culpability in this case. The purported
standards here are both too general and too vague to satisfy the
requirements of D.C. law.
Even when a purported standard sounds like nothing more
than “a lofty goal,” a party may still satisfy the expert testimony
requirement if the expert demonstrates that the purported
standard is “not merely a goal but [is] in fact . . . a national
standard applicable to [the defendant’s] efforts.” National
Telephone Coop. Ass’n v. Exxon Mobil Corp., 244 F.3d 153, 157
(D.C. Cir. 2001). But an expert must do more than simply state
that a purported standard sets a national norm. An expert’s
“own conclusory opinion,” Pannell, 829 A.2d at 479, without
any showing that the proffered standard “ha[s] been
14
promulgated, or [i]s generally known,” Messina, 663 A.2d at
539, is insufficient. Alternatively, an expert may support a
purported standard by showing that it has been accepted as
controlling in facilities and enterprises that are similar to
defendants’ facilities or enterprises. See Clark, 708 A.2d at 635
(finding that expert who “never testified with any specificity that
the standard of care he had in mind was used by other facilities
comparable to the Receiving Home” failed to demonstrate an
applicable standard of care); Messina, 663 A.2d at 539 (same
where expert presented “no evidence of the extent to which
municipalities or other school systems actually complied, or
even attempted to comply, with the [proffered] guidelines”);
Toy, 549 A.2d at 8 (same where there was “no indication of how
many police departments . . . ha[d the] type of emergency
equipment [at issue] available”).
Witherspoon simply asserted that the CPTED concept is
“widely used . . . in security design and practice,” and that the
OSHA standards “have been used for years throughout the
United States in addressing robbery prevention in a wide variety
of retail stores and facilities.” Witherspoon Report, reprinted in
J.A. 548, 553. These unsupported claims do not demonstrate a
national standard. Indeed, in his deposition, Witherspoon
acknowledged that there is no national security standard for
lighting. And there is nothing in his testimony that even vaguely
suggests a standard covering the appropriate timing for the
removal of construction fencing. He stated that he could not
recall whether any of the cases on which he previously had
served as an expert witness involved a construction company,
and he confirmed that none of them featured a local traffic
authority. In short, Witherspoon failed to establish that the
vague goals provided by the CPTED concept, studies, and
OSHA guidelines have been implemented by similar entities or
achieved nationwide acceptance.
15
“Nor can [Briggs] prevail on the basis of the provisions in
the [WMATA manuals]. . . .” Varner, 891 A.2d at 269. The
D.C. Court of Appeals has held that such internal policies –
standing alone – cannot demonstrate the applicable standard of
care. See Clark, 708 A.2d at 636-37 (“In essence, plaintiff’s
case here is based upon the proposition that the District deviated
from its own Plan. That is simply not enough.”); see also
Varner, 891 A.2d at 269-70; WMATA v. Young, 731 A.2d 389,
398 (D.C. 1999) (“[C]ompany rules are not ‘conclusive’ or
‘wholly definitive’ . . . .”). While internal regulations may be
“admissible as bearing on the standard of care,” admission at
trial of the WMATA manuals alone would be insufficient,
“because expert testimony [would still be] required to establish
that the [manuals] . . . embod[y] the national standard of care
and not a higher, more demanding one.” Clark, 708 A.2d at
636; see also Rajabi, 650 A.2d at 1322 (holding that a
contractual “maintenance schedule itself did not define the
standard of care”). “‘To hold otherwise would create the
perverse incentive for [WMATA] to write its internal operating
procedures in such a manner as to impose minimal duties upon
itself in order to limit civil liability rather than imposing safety
requirements upon its personnel that may far exceed those
followed by comparable institutions.’” Arnold & Porter, 756
A.2d at 435 (quoting Clark, 708 A.2d at 636); see Varner, 891
A.2d at 272 (“Aspirational practices do not establish the
standard of care which the plaintiff must prove in support of an
allegation of negligence.”).
On the record before us, we conclude that Briggs’ expert
offered only his own opinion in attempting to describe national
standards that might be applicable to establish standards of care
in this case. This is insufficient under D.C. law. Varner, 891
A.2d at 269; National Telephone, 244 F.3d at 157. Because
failure to establish a standard of care is “fatal to a negligence
claim,” Scott v. District of Columbia, 101 F.3d at 757, appellees
were entitled to summary judgment. We may affirm on the
16
basis of this conclusion alone, since Briggs fully developed and
briefed this required element of her claim. We thus have no
need to address appellees’ arguments with respect to the
remaining elements of negligence, their assertions of immunity,
and the District’s contention that it cannot be held liable under
either an agency or a landowner theory. See Odebrecht
Contractors, 393 F.3d at 1327 (refraining from addressing
additional arguments after making a dispositive conclusion);
Moreno, 647 A.2d at 401 (same).
III. CONCLUSION
For the reasons stated in this opinion, we affirm the
judgment for appellees.
So ordered.