                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 ROBERT H. HALE,

                Plaintiff,

        v.                                                Civil Action No. 13-1390 (RDM)

 UNITED STATES OF AMERICA,

                Defendant.


                             MEMORANDUM OPINION AND ORDER

       This civil action for damages arises under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 2671 et seq. Plaintiff Robert Hale is suing the United States for a workplace injury that

he sustained while performing repairs at a U.S. Department of the Navy building. At the time of

the accident, Plaintiff was employed by EMCOR Government Services (“EMCOR”), a

subcontractor for the Navy. The Court held a four-day bench trial, which concluded on February

27, 2019. The parties completed post-trial briefing on June 6, 2019. For the reasons set forth

below, the Court concludes that Plaintiff is barred from recovery because he was contributorily

negligent.

                                      I. BACKGROUND

       Plaintiff Robert Hale was formerly employed by EMCOR, a Navy subcontractor, as a

heating and air-conditioning mechanic. On May 12, 2011, Plaintiff received an emergency

“ticket” to repair the heating, ventilation, and air conditioning (“HVAC”) unit in Building 220 at

the Washington Navy Yard. The unit was located above a drop ceiling between floors one and

two. To access the unit’s controls compartment, Plaintiff climbed up a ladder and crawled into a

dark space along a narrow, wooden plank. When Plaintiff reached the end of the plank, he stood
up, hitting his head on conduit. He lost his balance and fell forwards through the drop ceiling.

As a result of his twelve-foot fall, Plaintiff fractured his wrist in multiple places. He alleges that

the effects of this injury persist to this day. See Dkt. 1 at 2 (Compl. ¶ 9).

       This Court held a four-day bench trial, which concluded on February 27, 2019. Plaintiff

principally argued at trial and in his post-trial briefing that, because the worksite at Building 220

failed to comply with various Occupational Safety Health Administration (“OSHA”) regulations,

the Navy was negligent per se. Dkt. 90 at 4–9. Defendant counters that the Navy does not owe

Plaintiff a duty (beyond that of an ordinary landowner), Dkt. 98-1 at 17, 24–25, and that, in any

event, Plaintiff is barred from recovery because he (1) was contributorily negligent and (2)

assumed the risk of falling, id. at 3–16. Although the parties’ post-trial briefing raises various

factual and legal issues, including the scope of the Navy’s duty to Plaintiff and the degree to

which Plaintiff’s wrist is permanently impaired, the Court need not resolve these issues here.

Rather, the case turns on whether Plaintiff was contributorily negligent, and, if so, whether his

contributory negligence bars his recovery as a matter of law. The Court concludes that it does.

The Court will, accordingly, find in favor of the United States.

A.     Procedural Background

       Plaintiff filed suit against the United States on September 12, 2013. The United States, in

turn, filed a third-party complaint against EMCOR on April 25, 2016. Dkt. 31 (3d Party

Compl.). At the joint request of the United States and EMCOR, the Court dismissed the third-

party complaint without prejudice on July 14, 2017. Dkt. 52 (Joint Stip. of Dismissal). Plaintiff

and the United States engaged in settlement discussions and initially reported to the Court that

they had “reached a settlement in principle.” Dkt. 61 at 1. At a subsequent status conference,

however, the parties disagreed about whether they had reached a binding settlement, and they



                                                   2
asked that the Court resolve that dispute. See Oct. 10 2018 Hrg. Tr. (Rough at 2–3, 4–7).

Because FTCA cases are tried to the bench, the Court suggested referring the parties’ dispute

regarding settlement to a magistrate judge, who could hear from the parties regarding the details

of the putative settlement and could decide whether the parties’ agreement “in principle” was

binding. Id. (Rough at 14). After the parties declined to consent to referring that limited portion

of the case to a magistrate judge, the Court determined that it should, first, hear the evidence and

decide the case as the trier of fact and, then, if necessary, decide whether the parties had entered

into a binding settlement agreement. Minute Order (Oct. 10, 2018). Although that approach is

far from efficient, the Court concluded that neither aspect of the parties’ dispute was necessarily

antecedent to the other and that it was appropriate to proceed in this order to avoid any

appearance that the parties’ settlement discussions influenced the Court’s factfinding.

       At trial, Plaintiff testified in support of his FTCA claim, and he called the following

additional witnesses: Elvin (“Buddy”) Luskey (his supervisor at EMCOR), Dr. Richard Barth (an

expert in orthopedic surgery with a specialty in hand and upper extremity), and Terry Lane (an

expert on OSHA worksite safety). The government, in turn, called Robert Goodwin (the site

manager of Navy Yard at the time of the accident), Jonathan Dobry (the maintenance manager),

James Waite (a contracting officer with the Naval Facilities Engineering Command), and

Eugenia Kennedy (an expert on OSHA worksite safety). The parties jointly called James Watts,

who was, at the time of the accident, a public works officer at the Naval Air Station. Both

parties also offered into evidence, inter alia, photographs and floor plans of Building 220, Def.

Exs. 4A–C, Plaintiff’s sketch of the mezzanine area where the HVAC unit was located, Joint Ex.

11B, and the accident report prepared by EMCOR, Pl. Ex. 4. Having considered the evidence




                                                  3
and testimony presented at trial and the parties’ post-trial submissions, 1 the Court will make the

following findings of fact and conclusions of law:

B.      Factual Background

        Plaintiff is a 49-year-old steamfitter (in layman’s terms, someone who installs or repairs

HVAC systems). Dkt. 85 at 39, 97 (Trial Tr.). He was hired by EMCOR in 2009. Id. at 41

(Trial Tr.). At the time, EMCOR held a contract with the Navy to perform repairs and general

maintenance of the mechanical equipment in all of the buildings at the Washington Navy Yard.

Id. at 51 (Trial Tr.). As a journeyman steamfitter for EMCOR, Plaintiff’s job entailed servicing

and maintaining all of the HVAC equipment for approximately forty buildings. Id. at 38 (Trial

Tr.).

        1.     Plaintiff’s Training

        Plaintiff began his career as a steamfitter in 2003 and, over the next five years, completed

an apprenticeship with the Steamfitters Local 602. Id. at 38–39 (Trial Tr.). In 2009, Plaintiff

was certified as a journeyman steamfitter, id., and he also received a certificate in OSHA safety

compliance, (Joint Ex. 11D). After Plaintiff joined EMCOR in 2009, he continued to receive

safety training. Plaintiff attended employee safety orientation, see Def. Ex. 4G, and was required

to attend weekly sessions on workplace safety, see Dkt. 77 at 110 (Trial Tr.); Dkt. 85 at 46–47

(Trial Tr.). Those weekly sessions covered topics such as fall protection, OSHA Top Ten

Standards, and the importance of creating a pre-task plan. See Joint Ex. 11F.




1
  Among other things, the Court considered the testimony and evidence offered at trial, see Dkts.
77, 78, 81, 82, 83, 84, 85, 86, 87, 88; Plaintiff’s proposed findings of fact, Dkt. 97, and
conclusions of law, Dkt 90; Defendant’s proposed findings of fact and conclusions of law, Dkt.
98; and Defendant’s reply to Plaintiff’s proposed findings of fact, Dkt. 99.

                                                 4
       2.      Building 220 Worksite

       The HVAC unit in Building 220 was located on the mezzanine level of the building

(between floors one and two) above the kitchen area. Dkt. 85 at 56 (Trial Tr.); see also Def. Ex.

4C (Photo of Kitchen and Mezzanine Stairs). To access the room containing the HVAC unit,

Plaintiff had to ascend a portion of a flight of stairs and then climb a ladder that rose above the

stairs. See Dkt. 85 at 56 (Trial Tr.). The top of the ladder came up to the base of a door, which

opened outwards, leading into the mezzanine. Def. Ex. 4A (Photo of Mezzanine Entrance).

Photographs of the stairs and ladder are reproduced below:




              Def. Ex. 4C                                                 Def. Ex. 4A
 (Photo of Kitchen and Mezzanine Stairs)                          (Photo of Mezzanine Entrance)




                                                  5
       Inside the mezzanine—between six and twenty inches from the door 2—was the HVAC

unit, which was eight feet wide, four feet tall, and four or five feet deep. Dkt. 85 at 61–2 (Trial

Tr.). The unit sat on top of steel beams above the drop ceiling. See id. at 71 (Trial Tr.). The

eight-foot side of the unit was facing the door, and the controls compartment was located on the

opposite side. Id. at 61–62 (Trial Tr.). The space between the wall and the unit was covered

with concrete. Id. at 62 (Trial Tr.). Along the right side of the unit (as one approached from the

mezzanine door) was a four-foot wide by eight-foot long wooden plank, 3 which sat on top of the

steel beams. Id. at 62, 64 (Trial Tr.). This was the only pathway to access the controls

compartment on the back side of the unit. Joint Ex. 11B (Plaintiff Sketch). The plywood

pathway was partially obstructed at the half-way point by ductwork protruding across the

pathway, “a couple feet” off the ground. Dkt. 85 at 65 (Trial Tr.). At the end of the wooden

plank was a metal catwalk, which abutted, and ran parallel to, the back side of the unit. Dkt. 78

at 23–24 (Trial Tr.). There was also a plywood platform along the back side of the unit. Joint

Ex. 11B (Plaintiff Sketch). A diagram of the area, drawn by Plaintiff at his deposition, is

included below:




2
  Plaintiff testified that the distance between the wall and the unit was between six and eight
inches. See Dkt. 85 at 60 (Trial Tr.). His supervisor, Luskey, testified that it was “[m]aybe 18
to 20 inches.” Dkt. 78 at 22 (Trial Tr.). For purposes of this opinion, this difference is
immaterial.
3
  Luskey testified that what Plaintiff described as a four-by-eight plank was two, two-by-twelve
boards placed together. See Dkt. 78 at 25 (Trial Tr.).

                                                  6
                                 Joint Ex. 11B (Plaintiff Sketch)

       Significantly, the Court finds that, at the time of Plaintiff’s accident, the area was

unilluminated, except for the ambient light coming through the mezzanine door. See Dkt. 85 at

63 (Trial Tr.). In addition, there were no barriers or tie-off points around the wooden plank or

catwalk. Dkt. 78 at 103 (Trial Tr.). As a result, there was nothing to prevent someone—like

Plaintiff—from accidentally falling off the wooden plank or metal catwalk and plunging through

the drop ceiling into the kitchen area below.

       3.      May 12, 2011 Accident

       On May 12, 2011, Plaintiff received an emergency “ticket” for Building 220. Dkt. 85 at

54 (Trial Tr.). The ticket stated that the air blowing from Building 220’s HVAC unit was too



                                                  7
cold. Id. at 55 (Trial Tr.). Pursuant to EMCOR policy, emergency tickets required a response

within one hour, and the work had to be completed by the end of the day. Id. at 44, 70 (Trial

Tr.). Prior to this service call, Plaintiff had never before serviced the HVAC unit in Building

220, nor was he familiar with the building. Id. at 55 (Trial Tr.).

       Plaintiff testified that he arrived at Building 220 with his “basic hand tools”: a “six-in-one

screwdriver, Channellock’s, and a crescent wrench.” Id. at 56 (Trial Tr.). He left the remainder

of the tools that EMCOR had provided him in his work van, including more hand tools, “a

vacuum pump, gauges,” and safety equipment, such as “a hard hat, safety gloves, . . . [and] an

emergency vest.” See id. at 45 (Trial Tr.). Plaintiff admitted, moreover, that he did not have a

flashlight either on him or in the van because he had “left it at home.” Dkt. 77 at 74 (Trial Tr.).

He also testified that he was not carrying “fall protection”—that is, a safety harness and

lanyard—because it was not a part of his regular toolkit and had to be checked out from the

EMCOR warehouse. Dkt. 85 at 47–48 (Trial Tr.).

       To access the HVAC unit in Building 220, Plaintiff went up the stairs next to the kitchen

area and climbed the ladder that led to the mezzanine door. Id. at 56 (Trial Tr.). In order to open

the door, which swung outwards, Plaintiff had to lean back, away from the ladder. Id. at 60

(Trial Tr.). Once the door was open, Plaintiff could see the HVAC unit inside the mezzanine.

Id. at 23 (Trial Tr.). He testified that he could not see, however, any overhead lights or even

light switches. Id. at 63 (Trial Tr.). His only light source was the ambient light through the

mezzanine door. Id. Plaintiff stepped through the door onto a platform. Id. at 62 (Trial Tr.).

The eight-foot side of the unit was directly in front of him. Id. at 61 (Trial Tr.). Upon observing

the unit, Plaintiff deduced that the controls compartment was located on the opposite side of the

unit because the fan section was on the side facing him. Id. at 64 (Trial Tr.).



                                                 8
       To reach the back side of the unit, Plaintiff first “shimmied” sideways along the eight-

foot side of the unit with his back against the unit and his body wedged between the unit and the

wall. Id. at 62 (Trial Tr.). Plaintiff testified that he thought the ground beneath him was

concrete. Id. When he reached the right corner of the unit, he saw a plywood pathway running

along the right side of the unit, further into the mezzanine area. Id. He walked down the

pathway, which was four feet wide. Id. at 64 (Trial Tr.). As he ventured further into the

mezzanine area, and away from the door, the lighting grew dimmer. Id. at 72 (Trial Tr.).

Plaintiff testified that, at this point, he noticed the pathway did not have any railings, physical

barriers, markers, or demarcated edges. Id. at 65–66 (Trial Tr.). He further observed that the

path was partially obstructed by ductwork that protruded from the middle of the HVAC unit, a

few feet off the ground. Id. at 65 (Trial Tr.). Plaintiff admitted that, upon observing these

conditions, he probably should have called his supervisor. Dkt. 77 at 105–06 (Trial Tr.). He did

not and, instead, ventured forward.

       When Plaintiff reached the ductwork, he realized that it was too high to step over, so he

crawled under it. Dkt. 85 at 65 (Trial Tr.). After he cleared the ductwork, Plaintiff stood up,

striking his head on conduit that was hanging overhead. Id. at 66 (Trial Tr.). The blow caused

him to lose his balance. Id. He misstepped, falling forward over the edge of the metal catwalk

that abutted the wooden plank. Id. Plaintiff fell twelve feet through the drop ceiling and landed

on top of a pile of carpet tiles in the kitchen. Id. at 67, 98 (Trial Tr.). The time was

approximately 11:00 a.m. Joint Ex. 16 at 6 (Kennedy Expert Rpt.). Only two minutes had

elapsed since Plaintiff entered the mezzanine. Dkt. 85 at 68 (Trial Tr.).




                                                  9
       4.      Aftermath

       Plaintiff was transported to Howard University Hospital by ambulance. Id. at 68 (Trial

Tr.). The doctors in the emergency room set Plaintiff’s right wrist, which was fractured in

multiple places, and determined, from his x-rays, that he needed surgery. Id. at 73 (Trial Tr.).

Plaintiff underwent surgery on May 18, 2011. Id. at 75 (Trial Tr.). As a result of his injury,

Plaintiff missed work from May 13, 2011 to June 10, 2011. See Pl. Ex. 19 (EMCOR’s Statement

of Pl.’s Lost Earnings). Plaintiff’s expert, Dr. Barth, moreover, estimates that he still has a

“disability rating” of “three percent to [his] right upper extremity.” Dkt. 77 at 34 (Trial Tr.).

       After the incident, a “Supervisor Investigation Report” was filed on May 13, 2019. See

Pl. Ex. 3 (Supervisor Invest. Rpt.). That report, which bore the signature of “Buddy Lusky,” and

which was approved by “Jon Dobry,” stated that the cause of Plaintiff’s fall was that he was

“unable to see the conduit that was behind the ductwork[,] and[,] when he hit his head[,] the

impact caused him to l[o]se his balance and fall.” Id. At trial, however, Luskey denied having

written or signed the report. See Dkt. 78 at 56–57 (Trial Tr.) (explaining that he signed

everything “Luskey, III,” not “Buddy Lusky”). He testified that Jon Dobry, EMCOR’s

maintenance manager at the time, signed his name. Id. Later, Dobry acknowledged that Luskey

took no part in completing the form because he was “not available.” Dkt. 87 at 82 (Trial Tr.).

Dobry further testified that the form was, in fact, completed by ECMOR’s safety technician,

Dave Smith, who investigated the fall. See id. at 82–83 (Trial Tr.).

       In Luskey’s view, there was no reason to write Plaintiff up for his conduct. He testified:

“[Plaintiff] was in a bad situation. I mean, it could have happened to anybody.” Dkt. 78 at 43

(Trial Tr.). The Navy Public Works Officer also conducted a preliminary mishap review and

filed a report. See Pl. Ex. 2 (Memo re Prelim. Mishap Review). According to that report, the



                                                 10
“primary causal factors” of Plaintiff’s fall were (1) “[i]nadequate walking space, lighting[,] and

no tie off points,” and (2) “[l]ack of knowledge of surroundings.” Id. at 1 (Memo re Prelim.

Mishap Review). The report recommended the following action: “[E]mployee will be retrained

prior to returning to work.” Id. Luskey testified that Plaintiff was not disciplined for the

incident. Dkt. 78 at 43 (Trial Tr.).

                 II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

       Because this case arises under the FTCA, D.C. substantive law applies. See Richards v.

United States, 369 U.S. 1, 2–3 (1962). That choice of law rule makes a significant difference

here, because the District is one of the few jurisdictions in the United States that still recognizes

the contributory negligence defense. As a general rule, this defense bars a plaintiff from

recovering in negligence if “the plaintiff failed to exercise reasonable care” and that “failure was

a substantial factor in causing the alleged damage or injury.” Massengale v. Pitts, 737 A.2d

1029, 1031 (D.C. 1999). The defense, however, admits of exceptions. See Martin v. George

Hyman Constr. Co., 395 A.2d 63, 69–70 (D.C. 1978). Accordingly, to resolve this case, the

Court must first decide whether Plaintiff failed to exercise reasonable care and whether any such

failure was a substantial factor leading to his fall and injury. If so, the Court must go on to

decide whether the contributory negligence defense bars his recovery or whether an exception to

the defense applies in this context.

       As explained below, the Court first finds that Plaintiff was negligent because, among

other things, he failed to carry a flashlight, which contributed to his fall. The Court further

concludes, moreover, that Plaintiff’s contention that the contributory negligence defense is

unavailable here because the Navy violated various OSHA regulations fails as a matter of law.




                                                  11
As a result, Plaintiff is barred from recovering damages against the United States under D.C.

law, regardless of whether—and to what degree—the Navy was negligent. 4

A.      Plaintiff’s Negligence Contributed to His Fall

        The District of Columbia follows the Restatement (Second) of Torts’ definition of

contributory negligence. Harrison v. United States, 2018 WL 4680204, at *4 (D.D.C. Sept. 28,

2018) (citing District of Columbia v. Brown, 589 A.2d 384, 388 (D.C. 1991)). The Restatement

defines contributory negligence as “conduct on the part of the plaintiff which falls below the

standard to which he should conform for his own protection, and which is a legally contributing

cause co-operating with the negligence of the defendant in bringing about the plaintiff’s harm.”

Restatement (Second) of Torts § 463 (1965). This conduct can take one of two forms: (a) “an

intentional and unreasonable exposure of himself to danger created by the defendant’s

negligence, of which danger the plaintiff knows or has reason to know, or (b) conduct which, in

respects other than those stated in Clause (a), falls short of the standard to which the reasonable

man should conform in order to protect himself from harm.” Id. § 466. To successfully invoke

the contributory negligence defense, the defendant must “‘establish, by a preponderance of the

evidence, that the plaintiff failed to exercise reasonable care’ . . . and that this failure was a

substantial factor in causing the alleged damage or injury.” Massengale, 737 A.2d at 1031

(citation omitted).

        The Court finds that Plaintiff’s conduct on May 12, 2011, fell “below the standard to

which he should [have] conform[ed] for his own protection,” Restatement (Second) of Torts

§ 463 (1965), and that his negligence constituted a “substantial factor,” Massengale, 737 A.2d at


4
 The Court need not—and, indeed, does not—make any findings of fact or conclusions of law
with respect to the Navy’s liability.



                                                   12
1031, in causing his fall. Plaintiff testified that he was not wearing a hard hat, nor was he

carrying fall protection or a flashlight in the mezzanine space. 5 See Dkt. 77 at 73–74 (Trial Tr.)

(no flashlight); Dkt. 85 at 45 (Trial Tr.) (no hard hat); id. at 47–48 (Trial Tr.) (no fall protection).

Plaintiff further admitted that, at multiple points, he “probably” should have called his

supervisor, but did not do so. See Dkt. 77 at 105–06 (Trial Tr.). Plaintiff ultimately conceded

that he should have reported the conditions to his supervisor instead of proceeding with the job:

        Q.      So you are saying you had absolutely no option you to do [the job] no
                matter what?

        A.      No.

        Q.      So what could you have done?

        A.      Well, I guess we could have tried to assess a better situation.

        Q.      How would you do that? You would call your supervisor in order to
                do that, correct?

        A.      Uh-hmm, sure.

Id. at 106 (Trial Tr.).

        According to the government, Plaintiff’s failure to bring the appropriate equipment to the

mezzanine and his failure to report the unsafe conditions violated EMCOR’s safety policies, see

Dkt. 87 at 57 (Trial Tr.) (testimony of Robert Goodwin, Plaintiff’s third-level supervisor), and




5
  Not all of these failures, however, contributed to Plaintiff’s fall. For example, although
Plaintiff was not wearing a hard hat at the worksite, it is not clear that donning it would have
averted the fall or prevented his wrist injury. Plaintiff testified that he fell because he lost his
footing upon hitting his head on conduit. Dkt. 85 at 66 (Trial Tr.). A hard hat might have
softened the blow to his head, but it is unlikely that it would have prevented the startled response
that caused him to lose his footing. Nor would bringing fall protection have prevented the
accident. As noted above, the mezzanine area of Building 220 did not have any tie-off points, so
Plaintiff would not have been able to use fall protection, even if he had it on his person.



                                                  13
OSHA regulations, see Joint Ex. 16 at 24 (Kennedy Expert Rpt.). The expert report of Eugenia

Kennedy, the government’s OSHA worksite safety expert, states:

        [I]t does not appear that Mr. Hale understood the safe and proper way to
        perform the work assignment. Additionally, he did not obtain the necessary
        tools and materials or report the unsafe work conditions to his supervisor as
        required by the EMCRO Safety Plan. Mr. Hale did not comply with OSHA
        regulations. Mr. Hale did not comply with EMCOR’s Safety Manual.

        Had Mr. Hale recognized the hazards present in this location and taken proper
        measures in accordance with EMCOR’s Safety Plan and OSHA regulations, it
        is unlikely that this incident would have occurred.

Id. (Kennedy Expert Rpt.). Plaintiff’s OSHA worksite safety expert, Terry Lane, disputes these

conclusions. According to Lane:

        It is clear from Mr. Hale’s deposition that he was in the process of accessing
        his workplace and assessing the situation when the accident occurred. It is also
        clear that he was not familiar with this workplace or any of its possible hazards
        prior to his arrival at the location of his accident. As such, Mr. Hale’s conduct
        was reasonable and did not violate any OSHA standards.

Joint Ex. 3 at 1 (Lane Supp. Expert Rpt). Plaintiff’s supervisor, Luskey, also testified that

Plaintiff was not at fault and the accident could have happened to anyone. Dkt. 78 at 43 (Trial

Tr.).

        Based on the Court’s review of the evidence, the Court credits the conclusions of

Kennedy over those of Lane and Luskey. To begin, although it is true that Plaintiff was unaware

of the possible hazards before entering Building 220, his own testimony establishes that he was

aware of the lack of lighting and barriers shortly after he entered the mezzanine area. In fact,

Plaintiff testified that he could tell that the room was dark—lit only by the ambient light coming

through the mezzanine door—before he even stepped inside. Dkt. 85 at 63 (Trial Tr.). As soon

as he stepped on the plywood path, moreover, he realized that there were no “railings, physical

barriers, or demarcated edges.” Id. at at 65–66 (Trial Tr.). In the face of these known dangers, it



                                                 14
was unreasonable of Plaintiff to continue further into the mezzanine area without at light. The

Court finds no merit to Lane’s argument that Plaintiff’s conduct was reasonable because he was

“in the process of accessing his workplace and assessing the situation.” Joint Ex. 3 at 1 (Lane

Supp. Expert Rpt.). Even if Plaintiff was merely canvassing the mezzanine area, he still acted

unreasonably after perceiving these dangerous conditions.

        At least one of Plaintiff’s negligent acts, moreover, substantially contributed to his fall:

his failure to carry and to use a flashlight. As noted above, it was unreasonable of Plaintiff to

continue searching for the HVAC unit’s controls compartment instead of exiting the space to

retrieve a flashlight when confronted with poor lighting, lack of guardrails, and a four-foot

walkway. Dkt. 85 at 63, 72 (Trial Tr.). A flashlight would have alerted Plaintiff to the hanging

conduit, which, in turn, would have likely prevented him from hitting his head and losing his

balance. Indeed, Plaintiff’s supervisor, Luskey, testified that, the six or seven times he had

serviced the HVAC unit in Building 220, he used a flashlight and never had an accident. Dkt. 78

at 26 (Trial Tr.). The fact that Plaintiff left his flashlight at home, Dkt. 77 at 74 (Trial Tr.),

moreover, does not excuse or mitigate Plaintiff’s negligence. Plaintiff was unfamiliar with the

mezzanine area at the time he entered the space; he knew that it was dark; he did not locate a

light switch; and he decided to proceed without a flashlight. Plaintiff made a poor decision, and

that decision was a substantial factor leading to his fall.

        The Court, accordingly, concludes that Plaintiff was contributorily negligent because his

failure to use a flashlight was a significant contributing factor to his fall.

B.      Contributory Negligence Bars Plaintiff’s Recovery

        The second step of the inquiry—whether contributory negligence bars Plaintiff’s

recovery—presents a question of law. On one hand, “contributory negligence is, in general, a



                                                   15
complete bar to recovery” under D.C. law. Martin, 395 A.2d at 68. On the other, there is a

“nearly universal rule . . . that neither contributory negligence nor assumption of risk bars

recovery for breach of a duty imposed by statute, ordinance, or regulation if [its] purpose would

be defeated by application of either defense.” Id. (emphasis added) (citing Restatement (Second)

of Torts, §§ 483, 496F (1965); W. Prosser, Law of Torts 425–26, 458–54 (4th ed. 1971)).

Plaintiff’s theory of the case is based on the latter principle: He contends that, because the

Building 220 worksite violated various OSHA regulations, the Navy was negligent per se,

rendering any negligence on his part immaterial to his recovery. Dkt. 90 at 4–9. The Court is

unpersuaded.

        In Martin, the D.C. Court of Appeals explained that, “where the judicially-developed

defenses of contributory negligence and assumption of risk conflict with the purposes of the

statutes and regulations [at issue], [those] defenses should not bar recovery.” 395 A.2d at 69;

contra Banks v. District of Columbia, 551 A.2d 1304, 1308 (D.C. 1988) (“[T]he defense of

contributory negligence is available as a defense [to housing code violations], since requiring

users of leased premises to act reasonably is in no way inconsistent with the policy underlying

the housing regulations.” (citing Scoggins v. Jude, 419 A.2d 999, 1005 (D.C. 1980); District of

Columbia v. Mitchell, 533 A.2d 629, 643 (D.C. 1987))). To determine whether the contributory

negligence defense is available to a defendant that has violated a statute or regulation, a court

must analyze “the effect of [each] statute or regulation” that the plaintiff alleges was violated—

that is, “the policies of [its] enactment [and] also the relation of those policies to each of the

defenses individually.” Martin, 395 A.2d at 69.

        Applying this test, the D.C. Court of Appeals held in Martin that a violation of

sections 11-21090 and 21091(f) of the District of Columbia Safety Standards, Rules, and



                                                  16
Regulations (“D.C. Safety Regulations”) precluded the defendant from invoking the contributory

negligence defense. Id. at 65, 71. The court explained that the “statutory duty of care” imposed

by the D.C. Safety Regulations “is broader than its common law counterpart.” Id. at 70 (citing

D.C. Code § 36-432(a) (1973) (repealed) (defining employer as “every person . . . having control

or custody of any industrial employment, place of employment, or of any employee”)). The

court further reasoned that, because the legislative history of the authorizing statute revealed

Congress’s intent to “impose[] upon employers (as broadly defined) the sole responsibility for

avoiding [workplace] accidents,” Congress could not have intended for contributory negligence

to bar claims brought under the statute. Id. (emphasis added) (citing H.R. Rep. No. 918 (1941);

S. Rep. No. 675 (1941)). Rather, “Congress established a new standard of care which

encompasses and supersedes the foreseeable and, practically speaking, inevitable lack of care on

the part of wage earners.” Id. at 71 (citing D.C. Code § 36-431 (1973) (repealed)). In light of

the above, the court concluded that contributory negligence could not bar claims based on

violations of the D.C. Safety Regulations because the purpose of the “regulations should not be

overborne by the common law.” Id. at 69.

       The Court reaches the opposite conclusion here. As a threshold matter, Plaintiff has

failed to cite any case—nor is the Court aware of any—that holds a violation of OSHA abrogates

the application of contributory negligence under D.C. law. The Court must, accordingly, apply

the test from Martin to answer this question of first impression. 6 Unlike in Martin, the statute at



6
  There is a circuit split on a separate, but related, issue: Whether a violation of OSHA gives rise
to negligence per se in the first place. Compare Pratico v. Portland Terminal Co., 783 F.2d 255,
265–68 (1st Cir. 1985) (holding that an OSHA violation gives rise to negligence per se under the
Federal Employers Liability Act (“FELA”) and eliminates the application of contributory
negligence), and Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231, 1238 (5th Cir. 1982)
(noting, in dicta, that a violation of an OSHA regulation can, “in appropriate circumstances” be


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issue here—OSHA—does not eliminate the application of contributory negligence or alter any

other common law claim or defense. The text of OSHA is unambiguous in this respect:

        Nothing in this chapter [i.e., OSHA] shall be construed to supersede or in any
        manner affect any workmen’s compensation law or to enlarge or diminish or
        affect in any other manner the common law or statutory rights, duties, or
        liabilities of employers and employees under any law with respect to injuries,
        diseases, or death of employees arising out of, or in the course of, employment.

29 U.S.C. § 653(b)(4) (emphasis added). Holding that contributory negligence does not apply to

claims based on violations of OSHA would contravene the plain language of the statute because

it would remove an affirmative defense otherwise available to employers, indelibly

“affect[ing] . . . the liabilities of employers . . . under [the] law.” Id.; see also United

Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1235–36 (D.C. Cir. 1980)



evidence of negligence per se), with Robertson v. Burlington N. R.R. Co., 32 F.3d 408, 410–11
(9th Cir. 1994) (disagreeing with Pratico); Ries v. Nat’l R.R. Passenger Corp., 960 F.2d 1156,
1161–63 (3d Cir.1992) (same); and Albrecht v. Baltimore & Ohio R.R. Co., 808 F.2d 329, 332–
33 (4th Cir. 1987) (same).

To date, no court has decided whether a violation of OSHA gives rise to negligence per se under
D.C. law. Two D.C. Court of Appeals decisions, however, seem to assume (without deciding)
that it can. In Thoma v. Kettler Bros., 632 A.2d 725 (D.C. 1993), the D.C. Court of Appeals
“decline[d] to hold that violation of an OSHA regulation is negligence per se as applied to
injured persons who in no sense are party to the employer-employee relationship to which the
regulations relate.” Id. at 728 (emphasis added) (citations omitted). Implicit in the court’s
holding is the notion that, had the plaintiff been a “party to the employer-employee relationship”
and not a business invitee, id., she may have established a claim for negligence per se. The
second case is Ceco Corp. v. Coleman, 441 A.2d 940 (D.C. 1982). There, the D.C. Court of
Appeals approved a negligence per se jury instruction over defense counsel’s objection that
“there was no basis for [the instruction] ‘on the facts of th[e] case.’” Id. at 946 (citation omitted).
The issue whether a violation of OSHA can give rise to negligence per se, however, was not
squarely presented.

The Court need not, however, wade into the circuit split or predict what the D.C. Court Appeals
would hold in a case that raised the question whether OSHA gives rise to an affirmative claim of
negligence per se. For present purposes, it is sufficient to conclude, under the reasoning
employed in Martin and the plain language of OSHA, 29 U.S.C. § 653(b)(4), that OSHA does
not “defeat[] the application of” the contributory negligence defense, Martin, 395 A.2d at 68.

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(“[W]hen a worker actually asserts a claim under workmen’s compensation law or some other

state law, Section 4(b)(4) intends that neither the worker nor the party against whom the claim is

made can assert any OSHA regulation or the OSH Act itself preempts any element of the state

law.”); Ries v. Nat’l R.R. Passenger Corp., 960 F.2d 1156 (3d Cir.1992) (“If a violation of an

OSHA regulation could constitute negligence per se and bar contributory negligence under the

FELA, it would be almost axiomatic that the effect would be to ‘enlarge or diminish or affect’

the statutory duty or liability of the employer.”).

       Martin turns on the premise that “[s]tatutes and regulations should not be overborne by

the common law.” 395 A.2d at 69. That is because “[t]he common law was developed to fill the

gaps between such non-judicial expressions of policy,” and, in the absence of such a gap, judicial

“[d]eference to the statutes and regulations is inherent in the separation of the branches of our

government.” Id. Here, however, Congress spoke to the question at hand and declared that

nothing in OSHA should be construed to affect “the common law” or the “liabilities of

employers . . . with respect to” workplace injuries in any manner. 29 U.S.C. § 653(b)(4). It

would stand Martin on its head to conclude that the deference that courts owe to congressional

enactments requires displacing the contributory negligence defense, when Congress expressly

disavowed any intent to, “in any manner[,] . . . affect the common law.” Id.

       Turning to the purpose of OSHA, there is no indication here, as there was in Martin, that

“[the statute] seek[s] to protect individuals from their own negligence and therefore impose[s]

obligations on another party in order to prevent injury.” Mahnke v. Wash. Metro. Area Transit

Auth., 821 F. Supp. 2d 125, 138 (D.D.C. 2011); see also Jarrett v. Woodward Bros., 751 A.2d

972, 985 (D.C. 2000) (holding that contributory negligence is not a defense to a violation of the

D.C. statute prohibiting the sale of alcohol to minors). To be sure, the purpose of OSHA is to



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promote workplace safety. See Ries, 960 F.2d at 1160. But, unlike the D.C. Safety Regulations

at issue in Martin, which imposed “the sole responsibility for avoiding those accidents” on

employers, 395 A.2d at 70 (emphasis added), OSHA does not “hold the employer responsible for

the prevention of all accidents,” Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1118 (10th

Cir. 1977). To the contrary, the regulations impose a concomitant duty on employees to avoid

accidents by complying with OSHA regulations. See 29 U.S.C. § 654(b) (“Each employee shall

comply with occupational safety and health standards and all rules, regulations, and orders issued

pursuant to this [Act] which are applicable to his own actions and conduct.”). Given that OSHA

was “not enacted with the purpose to protect [workers] from their own negligence, a contributory

negligence defense would not frustrate or conflict with the underlying purpose of the [statute]

and remains available to the defendant.” Mahnke, 821 F. Supp. 2d at 140 (holding that the

defendant’s violation of a traffic regulation does not bar the contributory negligence defense

because, under D.C. law, both drivers and pedestrians have “a duty ‘to keep a proper lookout’”

(citations omitted)). There is, accordingly, nothing in either the text or purpose of OSHA that

would suggest Congress intended a violation of OSHA regulations to bar the application of

contributory negligence.

       The Court therefore concludes that, under D.C. law, a violation of OSHA does not

eliminate the application of contributory negligence as a bar to recovery.

                                         CONCLUSION

       For the foregoing reasons, the Court finds that Plaintiff is barred from recovery because

he was contributorily negligent. The Court will, however, defer the entry of judgment, pending a

joint status report from the parties informing the Court how they would like to proceed regarding

the settlement issue.



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       It is hereby ORDERED that the parties shall file a joint status report on or before August

23, 2019.

       SO ORDERED.

                                                    /s/ Randolph D. Moss
                                                    RANDOLPH D. MOSS
                                                    United States District Judge


Date: August 9, 2019




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