                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

MARGARETTA SIBERT-DEAN,

       Plaintiff,

               v.

WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY,                                    Civil Action No. 08-2145 (BAH)
                                                      Judge Beryl A. Howell
       Defendant / Third-Party Plaintiff

               v.

NORMA JEAN WOODSON

       Third-Party Defendant.



                                  MEMORANDUM OPINION

       Following an eight-day jury trial, defendant Washington Metropolitan Area Transit

Authority (“WMATA”) was found liable for the injuries plaintiff Margaretta Sibert-Dean

sustained after the WMATA bus on which she was a passenger collided with another vehicle.

WMATA now seeks a new trial, pursuant to Federal Rule of Civil Procedure 59, arguing that the

Court erred when it instructed the jury in accordance with the jury instructions that WMATA

submitted to the Court and initially requested the Court to use. Specifically, the Court instructed

the jury that a violation of any of the seven traffic regulations applicable in this case would

constitute negligence per se. In its instant motion, WMATA complains that two of the seven

regulations should not have been included in the negligence per se instruction. According to

WMATA, these two regulations – 18 DCMR § 2213.4 and § 2206.1 – merely reiterate the duty

of care established by the common law and consequently are not sufficiently specific to support a

negligence per se instruction. This argument is different from the various positions WMATA

                                                  1
previously asserted both before and during trial, when, after requesting a negligence per se

instruction, WMATA argued that negligence per se was not applicable for violation of any

traffic regulation. WMATA now apparently concedes that a negligence per se instruction is

appropriate for certain traffic regulations, just not the two regulations singled out in this motion.

As explained below, WMATA’s new challenge to the negligence per se instruction given to the

jury at the trial of this matter is unavailing. Accordingly, WMATA’s motion for new trial is

denied.

I.         BACKGROUND

           On February 14, 2006, a WMATA bus traveling southbound on Georgia Avenue in

Northwest Washington, D.C. collided with a vehicle driven by Norma Jean Woodson. Trial Tr.

(Rough), Sept. 22, 2011 AM, at 8-11.1 The collision occurred when Ms. Woodson, who was

driving northbound on Georgia Avenue, made a left turn in front of the bus in order to enter a

grocery store parking lot. Trial Tr. (Rough), Sept. 27, 2011, at 94. Plaintiff Margaretta Sibert-

Dean was a passenger on the WMATA bus at the time of the accident, and sustained trauma to

her shoulder and neck area as a result of the accident that caused her to suffer orthopedic and

neurologic injuries. Trial Tr. (Rough), Sept. 22, 2011 AM, at 77-85; Trial Tr. (Rough), Sept. 23,

2011 (testimony of Dr. Edwin Fulton); Trial Tr. (Rough), Sept. 26, 2011 (testimony of Dr.

Kenneth Murray).

           On November 1, 2008, the plaintiff filed a Complaint against WMATA, asserting

negligence on the part of the WMATA bus driver and seeking compensation for the injuries she

sustained.2 Notice of Removal, ECF No. 1, Ex. 1, D.C. Superior Court Compl. On December


1
  The parties have not requested formal transcripts of the trial from the court reporters. Accordingly, the Court’s
citations to the trial transcripts are from the court reporters’ rough draft of the proceedings.
2
    The plaintiff originally filed this case in Superior Court. The defendant removed the action to federal court on

                                                             2
18, 2008, WMATA filed a third-party Complaint against Ms. Woodson (“third-party defendant

Woodson”).3 ECF No. 4.

         In advance of trial, on August 15, 2011, the parties filed a joint pretrial statement setting

forth, inter alia, the claims and defenses they would assert before the jury, as well as proposed

jury instructions. Joint Pretrial Statement (“JPS”), ECF No. 54. WMATA summarized its

defenses that its employee bus driver was not negligent and “paid full time and attention to the

operation of the WMATA bus, and . . . complied fully with all District of Columbia Traffic

Regulations then and there in force and effect.” Id. at 2. WMATA also made clear its claim that

third-party defendant Woodson’s negligence caused the accident and that she “violated . . . DC

[sic] Traffic Regulations in the operation of her vehicle and that the violation of these

regulations constitutes negligence per se and/or evidence of negligence.” Id. at 3. WMATA

cited eight regulations, including “18 DCMR []§2213.4 (Failure to Pay Full Time and

Attention),” which is at issue in this motion, as traffic regulations that would constitute

negligence per se if violated. 4 Id.

         As required by the Court’s order, Supplemental Standing Order, ECF No. 53, May 25,

2011, at ¶ 1(b)(ii), WMATA also supplied as part of the JPS, the text of proposed jury



December 10, 2008, pursuant to 28 U.S.C. § 1441 and the WMATA Compact, D.C. CODE § 9-1107.01, which states
that “[t]he United States district courts shall have original jurisdiction . . . of all actions brought by or against
[WMATA].” See also Barksdale v. Washington Metro. Area Transit Auth., 512 F.3d 713, 714 (D.C. Cir. 2008).
3
  Prior to the filing of the Complaint, the plaintiff settled her claims against third-party defendant Woodson through
Ms. Woodson’s insurance carrier, Allstate Insurance Company, in exchange for $18,000. Third-Party Def.
Woodson Mot. Summ. J., ECF No. 48, ¶¶ 3-4. Consequently, third-party defendant Woodson is not exposed to any
further monetary liability in this matter. The jury finding of negligence liability against her entitles WMATA to
contribution and a pro rata credit for the liability WMATA faces. See Mem. Op. denying Third-Party Defendant
Woodson’s Mot. Summ. J., ECF No. 51, at 6 (Urbina, J.).
4
 The other seven regulations cited by WMATA as constituting negligence per se when violated are: 18 DCMR §§
2201.7 (Proper Use of the Roadway); 2205.1 (Proper Signals For Turning and Stopping); 2204.2, 2204.3 and 2204.4
(Turning Requirements and Restrictions); 2207.3 and 2207.4 (Right of Way Between Intersections). JPS, ECF No.
54, Ex. 3, “Proposed Jury Instructions Prepared by Defendant WMATA – Includes Proposed Instructions By
Plaintiff and Defendant Woodson,” at 34-42.

                                                          3
instructions. WMATA’s proposed jury instructions included a negligence per se instruction

based upon D.C. Standardized Civil Jury Instruction § 5.09 and modified with the text of eight

traffic regulations, violation of which would trigger the finding of negligence. 5 JPS, ECF No.

54, Ex. 3, “Proposed Jury Instructions Prepared by Defendant WMATA – Includes Proposed

Instructions By Plaintiff and Defendant Woodson,” at 34-42. The plaintiff and third-party

defendant Woodson joined in this request. Id. The traffic regulations that WMATA requested

the Court to read to the jury included 18 DCMR § 2213.4, which provides that “[a]n operator

shall, when operating a vehicle, give full time and attention to the operation of the vehicle.” Id.

at 34. In addition to the eight traffic regulations requested by WMATA, the plaintiff requested

inclusion of 18 DCMR § 2206.1, which provides that “[n]o person shall start a vehicle which is

stopped, standing, or parked unless and until the movement can be made with reasonable safety.”

JPS, ECF No. 54, Ex. 2, Pl.’s Proposed Jury Instructions, at 26.

         In order to clarify portions of the JPS, including any objections among the parties to

proposed jury instructions, the Court directed the parties submit a supplemental joint pretrial

statement that included “a joint agreed upon list of proposed jury instructions.” Minute Order

dated Aug. 25, 2011 (Howell, J.). In the Supplement to the JPS, all three parties jointly

requested that the Court give “Civil Jury Instructions for DC § 5.09 – (Plaintiff request pattern

only; WMATA requests modified only).” Supplement to the JPS, ECF No. 57, at 11. No party

requested the negligence instruction at D.C. Standardized Civil Jury Instruction § 5.10. Id.

         At the initial charging conference held on September 27, in the middle of trial, the Court

raised the issue of whether the negligence per se jury instruction, D.C. Standardized Civil Jury

5
 WMATA also included in its proposed jury instructions D.C. Standardized Civil Jury Instruction § 5.10, Evidence
of Negligence, which instructs the jury, in relevant part, that if it finds a regulation to have been violated that it “may
consider that violation as evidence that the [defendant] was negligent. However, that violation by itself does not
necessarily mean that the [defendant] was negligent.” JPS, ECF No. 54, Ex. 3, “Proposed Jury Instructions Prepared
by Defendant WMATA – Includes Proposed Instructions By Plaintiff and Defendant Woodson,” at 43.

                                                            4
Instruction § 5.09, as opposed the “evidence of negligence” instruction, D.C. Standardized Civil

Jury Instruction § 5.10, was appropriate, considering that WMATA had listed both instructions

in its initial proposed jury instructions filed with the JPS. Trial Tr. (Rough), Sept. 27, 2011, at

137-39. The Court revisited this issue at a charging conference held on September 28, and

concluded that the negligence per se jury instruction that all three parties had initially requested

in the JPS and jointly listed as agreed-to in the supplemental JPS, was appropriate. Trial Tr.

(Rough), Sept. 28, 2011 AM pt. 2, at 3-4. WMATA raised no objection to the inclusion of the

negligence per se jury instruction. Id. Rather, WMATA reiterated its request to include in the

negligence per se instruction 18 DCMR § 2201.7, as it had originally requested in the JPS, and

urged the Court to consider including an additional traffic regulation, 18 DCMR § 2201.9, which

had not previously been mentioned either in the JPS, Supplemental JPS or orally in discussions

concerning the jury instructions. Id. at 4-5. The Court sustained the objection by third-party

defendant Woodson and the plaintiff to inclusion of 18 DCMR § 2201.7 in the instructions,

finding that regulation inapplicable to the street configuration at issue in the case.6 Id. at 3-4.

Both the plaintiff and third-party defendant Woodson objected to WMATA’s new request to

include 18 DCMR § 2201.9. Id. The Court sustained the objection following review of the

requested traffic regulation and finding it inapplicable to the facts presented in the case. 7 Id. at


6
  18 DCMR § 2201.7 states: “Whenever any highway has been divided into two (2) or more roadways by leaving an
intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular
traffic, every vehicle shall be driven only upon the right-hand roadway, unless directed or permitted to use another
roadway by official traffic control devices or police officer.” WMATA argued that this regulation barred a left turn
across double yellow lines and was therefore violated by third party defendant Woodson. Trial Tr. (Rough),
September 27, at 140, and 28, AM, pt 2. The Court explained during the charging conference that while no caselaw
from the District of Columbia interpreted this statute, the Court had examined authority from other jurisdictions with
closely analogous traffic regulations that held the regulation simply did not apply to vehicles turning across double
yellow lines. Trial Tr. (Rough), Sept. 28, 2011 AM, pt. 2; see Vail-Beserini v. Rosengarten, 267 A.D.2d 812 (N.Y.
App. Div. 1999); Carroll v. Conrad, 30 A.D.2d 744 (N.Y. App. Div. 1968).
7
 Following the Court’s ruling that 18 DCMR § 2201.7 was not applicable in this case, WMATA’s counsel, Ms.
Carey, urged the Court to include 18 DCMR § 2201.9, which prompted the following discussion with the Court:


                                                          5
4-5.

         Later the same day, shortly before the jury was instructed, WMATA raised an objection

to the negligence per se jury instruction, arguing that negligence per se was not applicable to any

traffic regulation and citing in support of this position Bowman v. Redding & Co., 449 F.2d 956

(D.C. Cir. 1976). Trial Tr. (Rough), Sept. 28, 2011 PM, at 1 (WMATA Counsel, Ms. Carey:

“I’m concerned with the negligence per se, instruction . . . . My concern is that the traffic

regulations are generally not the type of regulation which a violation creates negligence per se . .

.”). The Court declined to rely on this case and overruled the objection.8 Id. at 10-11.

         During trial, the jury heard evidence that prior to the accident, the WMATA bus was

stopped on the 3800 block of Georgia Ave. N.W. to pick up and drop off passengers. Trial Tr.

(Rough), Sept. 27, 2011, at 51-54 (testimony of Dante Dinkins); see also Trial Tr. (Rough), Sept.



         THE COURT: Can I see this regulation? And the number was 2201.9?
         MS. CAREY: Yes.
         THE COURT: And Ms. Carey you believe that 2201.9 precludes turning left across double yellow lines?
         MS. CAREY: Yes.

Trial Tr. (Rough), Sept. 28, 2011 PM, at 4-5. Specifically, this regulation states: “The driver of a vehicle shall not
follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles
and the traffic upon and the condition of the roadway.” Since the regulation is silent on whether a turn that crosses
double yellow lines is prohibited, the jury was not instructed on this regulation. It should be noted, however, that at
the September 28 charging conference WMATA sought inclusion of 18 DCMR § 2201.9 in the negligence per se
jury instruction despite the fact that, similar to the regulations now challenged by WMATA in its motion for new
trial, it directs a driver to conform his or her conduct to a reasonableness standard.
8
 In overruling WMATA’s eleventh-hour objection to the very jury instruction that it itself requested, the Court
explained:

         [The traffic regulations applicable in the case] are specific regulations enacted to protect the safety of
         passengers and others on the roadway. The plaintiff is clearly within that class of people for whom the
         traffic regulations were designed to protect. The defendants, WMATA, and Ms. Woodson, have presented
         disputed factual issues about whether or not they violated the traffic violations or not, but that’s a factual
         dispute. It’s up to the jury to decide. And under [Burns v. Washington Metropolitan Area Transit
         Authority, 114 F.3d 219 (D.C. Cir. 1997)] . . . the magistrate judge that tried that case assumed on herself to
         decide and not give the negligence per se instruction and got reversed []. And so I am going to . . . give
         this instruction . . . . [I]f there was a debate about this very significant issue, [the defendants] should have
         brought it up much earlier than now, particularly since I was relying on both WMATA’s proposed jury
         instructions and the plaintiff’s jury instructions.

Trial Tr. (Rough), Sept. 28, 2011 PM, at 10-11.

                                                           6
21, 2011 PM, at 13. At this stop, the WMATA bus driver, Dante Dinkins, was distracted by

attractive women in the vicinity and failed to assess traffic conditions prior to accelerating from

his stopped position. Trial Tr. (Rough), Sept. 22, 2011 AM, at 9-16 (testimony of Patricia

Shelton); id. at 71 (testimony of plaintiff Margaretta Sibert-Dean). Witnesses stated that had the

bus driver looked before moving, he would have noticed that third-party defendant Woodson’s

car was turning immediately in front of the bus. Id. at 29-32 (testimony of Patricia Shelton); id.

at 74-75 (testimony of plaintiff Margaretta Sibert-Dean). Also presented at trial was evidence

that third-party defendant Woodson observed that the WMATA bus was moving, or would soon

move, and that she nonetheless attempted to cross traffic into the grocery store parking lot before

it was safe to do so. Trial Tr. (Rough), Sept. 27, 2011, at 109-112 (testimony of Michael

Cooper). On September 30, 2011, the jury returned a verdict against WMATA and third-party

defendant Woodson, concluding that both defendants’ negligence proximately caused the

accident.9 Verdict Sheet, ECF Nos. 67-68. The jury awarded the plaintiff $675,000.00 for her

injuries. Id.

           On October 7, 2011, WMATA filed the instant motion for a new trial. ECF No. 70.

WMATA contends that the Court erred when it included traffic regulations 18 DCMR §§ 2213.4


9
    The jury provided the following answers to the questions posed on the Verdict Sheet:

      “QUESTION 1: Do you find that the Plaintiff has proven, by a preponderance of the evidence, that the
      Washington Metropolitan Area Transit Authority, through its employee, was negligent, and that its negligence
      was a cause of the accident of February 14, 2006? YES.

      QUESTION 2: Do you find that the Washington Metropolitan Area Transit Authority has proven, by a
      preponderance of the evidence, that third-party defendant Norma Jean Woodson was negligent, and that her
      negligence was a cause of the accident of February 14, 2006? YES.

      QUESTION 3: Do you find that the Plaintiff has proven, by a preponderance of the evidence, that she was
      injured as a proximate result of the accident of February 14, 2006? YES.

      QUESTION 4: What amount, if any, do you award the plaintiff for her compensatory damages? $675,000.”

Verdict Sheet, ECF Nos. 67-68 (instructions omitted).

                                                           7
and 2206.1 among the seven traffic regulations in the Court’s negligence per se instruction.

Traffic regulation § 2213.4, “Obstruction of Driver’s View or Driving Mechanism: Improper

Riding,” provides that “[a]n operator shall, when operating a vehicle, give full time and attention

to the operation of the vehicle.” Regulation § 2206.1, “Starting, Stopping and Backing,” states

that “[n]o person shall start a vehicle which is stopped, standing, or parked unless and until the

movement can be made with reasonable safety.” Although WMATA argued on September 28

that negligence per se is not applicable to any traffic regulations, in its motion for new trial

WMATA raises a different argument, asserting that inclusion of only these two traffic

regulations, of the seven provided to the jury, was improper. As explained below, however, this

argument is without merit. Accordingly, WMATA’s motion for new trial is denied.

II.     STANDARD OF REVIEW

        Pursuant to Federal Rule of Civil Procedure 59, “[t]he court may, on motion, grant a new

trial on all or some of the issues . . . after a jury trial, for any reason for which a new trial has

heretofore been granted in an action at law in federal court.” FED. R. CIV. P. 59(a)(1)(A).

In evaluating a motion for new trial, the court must “be mindful of the jury’s special function in

our legal system and hesitate to disturb its finding.” Long v. Howard Univ., 512 F. Supp. 2d 1, 6

(D.D.C. 2007) (citation omitted). To preserve the function of the jury, new trials should not be

granted unless “the court is convinced that the jury verdict was a ‘seriously erroneous result’ and

where denial of the motion will result in a ‘clear miscarriage of justice.’” In re Lorazepam &

Clorazepate Antitrust Litig., 467 F. Supp. 2d 74, 87 (D.D.C. 2006). “Generally, a new trial may

only be granted when a manifest error of law or fact is presented.” Id. In a motion for a new

trial challenging a jury instruction, “[t]he harmless error rule applies; to warrant reversal, the

error must have been prejudicial: It must have affected the outcome of the district court



                                                    8
proceedings.” Czekalski v. Lahood, 589 F.3d 449, 453 (D.C. Cir. 2009) (quotation omitted).

“Jury instructions are proper if, when viewed as a whole, they fairly present the applicable legal

principles and standards.” Id. (quotation omitted). The decision to grant or deny a motion for

new trial “lies within the sound discretion of the court.” Armenian Assembly of Am., Inc. v.

Cafesjian, 783 F. Supp. 2d 78, 85 (D.D.C. 2011) (quotation omitted).

III.       DISCUSSION

           WMATA raises a single issue in its motion for new trial: that the Court erred when it

instructed the jury that unexplained violations of two traffic regulations, 18 DCMR §§ 2213.4

and 2206.1, would constitute negligence per se as part of D.C. Standardized Civil Jury

Instruction § 5.09.10 Notably, the defendant does not claim any error in instructing the jury that

violation of five other traffic regulations constituted negligence per se. Rather, WMATA

contends that only these two regulations, out of the seven provided to the jury, are inappropriate

for a negligence per se instruction because these regulations do not establish specific guidelines

governing the defendant’s actions, but merely reiterate the duty of care established by the

common law. This argument was not raised before the Court in the JPS, in which WMATA

requested that the negligence per se instruction be given with § 2213.4, in the supplement to the

JPS, in which WMATA joined with the other parties in requesting the negligence per se rather

than the mere negligence instruction, or during the pretrial conference or the final charging

10
     When instructing the jury, the Court stated in pertinent part:

           At the time the accident under consideration in this trial occurred, the following regulations were in effect
           in the District of Columbia. These regulations establish the applicable standard of care. You should
           measure the defendant’s conduct by these standards. If you find that WMATA has violated any of these
           regulations then you must find this defendant negligent. If you find that the Third Party Defendant Norma
           Jean Woodson violated any of these regulations, then you must find her negligent. D.C. Municipal
           Regulation 2213.4: An operator shall, when operating a vehicle, give full time and attention to the
           operation of the vehicle. Regulation 2206.1: No person shall start a vehicle which is stopped, standing or
           parked unless and until the movement can be made with reasonable safety . . . .”

Trial Tr. (Rough), Sept. 28, 2011 PM, at 34-35.

                                                              9
conference. The argument will not now support a new trial.

        A. Negligence Per Se and Traffic Regulations

        As a preliminary matter, the Court notes that unexplained violations of traffic regulations

may constitute negligence per se in the District of Columbia. This Court recently rejected

WMATA’s contention in Mahnke v. Washington Metropolitan Area Transit Authority, No. 10-

cv-21, 2011 WL 5006914 (D.D.C. Oct. 20, 2011), that negligence per se does not apply to

statutes governing vehicular traffic. As explained in Mahnke, “D.C. courts have repeatedly held

that ‘the unexplained violation of a traffic regulation enacted . . . to . . . prevent the type of

accident that occurred constitutes negligence per se.’” Id. at *7 (quoting Burns v. Washington

Metro. Area Transit Auth., 114 F.3d 219, 223 (D.C. Cir. 1997)); see also Stevens v. Hall, 391

A.2d 792, 796 n.2 (D.C. 1978) (“Our Court of Appeals has consistently held in personal injury

cases involving vehicles that if an applicable traffic regulation is violated negligence has been

established as a matter of law, thus leaving only the question of proximate cause to be decided,”

quoting Herrell v. Pimsler, 307 F.Supp. 1166, 1168 (D.D.C. 1969)); Bauman v. Sragow, 308

A.2d 243, 244 (D.C. 1973) (per curiam) (“Violation of traffic regulations may, of course,

constitute negligence per se.”); Herrell, 307 F.Supp. at 1168 (“It is firmly established in this

jurisdiction that violation of traffic regulations designed to promote safety is negligence as a

matter of law where actions of adults are involved.”); Abel v. First Sec. Ins. Co. of Am., 120 A.2d

586, 587 (D.C. App. 1956) (“[A]lthough violation of traffic regulations may be negligence per

se, it is still a question of fact whether or not the regulations were actually violated, and if so

whether their violation was the proximate cause of the collision.”).

        In Burns v. Washington Metropolitan Area Transit Authority, 114 F.3d 219 (D.C. Cir.

1997), for example, the D.C. Circuit ordered a new trial after concluding that the magistrate



                                                   10
judge, who presided over trial, erred in failing to instruct the jury that the defendant’s violation

of the applicable traffic speed regulations was negligence per se and not merely “evidence of

negligence.” Id. at 223. The court stated that “[i]n the District of Columbia, the ‘unexplained’

violation of a traffic regulation enacted . . . to . . . prevent the type of accident that occurred

constitutes negligence per se.” Id. (internal quotation omitted). By contrast to its position at the

charging conference on September 28, 2011, when WMATA argued that negligence per se does

not apply to traffic regulations, WMATA now objects only to the inclusion of two, out of seven,

traffic regulations in the negligence per se instruction.

        B. A Negligence Per Se Instruction is Applicable to D.C. Traffic Regulations 18
           DCMR §§ 2213.4 and 2206.1

        WMATA contends that “traffic regulations in general are less susceptible to a negligence

per se analysis because they inherently reflect the common law standards for negligence.”

WMATA Reply Mot. New Trial, ECF No. 74, at 2. Specifically, WMATA argues that the

negligence per se jury instruction, D.C. Standardized Civil Jury Instruction § 5.09, “is limited in

scope and should not be given unless the applicable statute or regulation mandates specific

guidelines governing a defendant’s actions.” Mem. Supp. WMATA Mot. New Trial (“WMATA

Mem.”), ECF No. 70, at 3. Thus, according to WMATA, the instruction is not appropriate where

a regulation “merely addresses general principles which mirror the common law standards for a

negligence action.” Id.

        WMATA is correct that in general “a statute or regulation offered to establish a standard

for negligence per se purposes must not merely repeat the common law duty of reasonable care,

but must set forth ‘specific guidelines to govern behavior.’” McNeil Pharm. v. Hawkins, 686

A.2d 567, 579 (D.C. 1996) (quoting Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 558

(D.C. Cir. 1993)); Chadbourne v. Kappaz, 779 A.2d 293, 296 (D.C. 2001) (same). The

                                                   11
regulations objected to in this case, however, are appropriate for a negligence per se instruction.

       1. The Authority Cited by WMATA is Not Relevant to Traffic Regulations

       WMATA asserts that “traffic regulations that only serve ‘to clarify and define the

elements of due care’ are not the type of regulations which can support a negligence per se

instruction.” WMATA Mem., ECF No. 70, at 5. None of the cases WMATA relies on in

support of this position, however, involve traffic regulations or even traffic accidents. WMATA

cites to Chadbourne v. Kappaz, 779 A.2d 293 (D.C. 2001), but that case involved application of

negligence per se to D.C.’s animal leash laws. McNeil Pharmaceutical v. Hawkins, 686 A.2d

567 (D.C. 1996), another case relied upon by WMATA, involved a products liability action

against a pharmaceutical company; District of Columbia v. Mitchell, 533 A.2d 629 (D.C. 1987),

was a case involving regulations pertaining to the D.C. Department of Corrections; and Joy v.

Bell Helicopter Textron, Inc., 999 F.2d 549 (D.C. Cir. 1993), involved application of Federal

Aviation regulations. See also Thoma v. Kettler Bros., Inc., 632 A.2d 725, 728-29 n.8 (D.C.

1993) (construction site standards); Lewis v. Washington Metro. Area Transit Auth., 463 A.2d

666, 674 (D.C. 1983) (building codes).

       WMATA’s reliance on Bowman v. Redding & Co., 449 F.2d 956 (D.C. Cir. 1971) is

similarly misplaced. In Bowman, the estate of a deceased construction worker brought a

wrongful death action against his employer, alleging that the defendant violated workplace safety

regulations at a construction site. The district court directed verdict for the defendant on grounds

that the plaintiff was contributorily negligent, and thus barred from recovery. On appeal, the

D.C. Circuit held that a contributory negligence defense was available to the defendant even if it

violated safety regulations, but remanded the case because disputed issues of fact warranted a

trial. In its discussion of contributory negligence and workplace safety regulations, the court



                                                12
commented in dicta:

        In the ordinary negligence case involving automobiles, the legislative policy underlying
        traffic and kindred regulations is discernible as one that is intended to clarify and define
        the elements of due care. But such regulations are not intended to affect legal doctrines
        holding that a vehicle operator guilty of negligence-whether ascertained by a jury
        applying the broad common law standard or by a particular legislative standard-is not
        liable to an individual whose own negligence materially contributed to his injury. In such
        cases the defense of contributory negligence stands unaffected.

Id. at 966.

        In its previous effort to avoid a negligence per se instruction altogether, WMATA urged

the Court during the September 28 charging conference to spurn the clear holding in Burns that

violation of traffic regulations constitutes negligence per se based on this dicta in Bowman.

WMATA now relies on the same dicta in Bowman to argue that two of the charged traffic

regulations cannot support a negligence per se instruction. This argument carries no more weight

now than WMATA’s previous argument. First, Bowman’s reference to traffic regulations was in

the context of a discussion about the availability of a contributory negligence defense for a

defendant who violated applicable regulations, and did not pertain to the scope of negligence per

se. Second, even in this dicta, the Court in Bowman recognized that negligence by a “vehicle

operator” could be established “by a jury applying . . . a particular legislative standard.” Id. In

this respect, the dicta in Bowman is fully consistent with the more recent and clear holding in

Burns that “the ‘unexplained’ violation of a traffic regulation enacted to prevent the type of

accident that occurred constitutes negligence per se.” Burns, 114 F.3d at 223.

        2. Traffic Regulations 18 DCMR §§ 2213.4 and 2206.1 Warrant a Negligence Per Se
           Instruction

        Contrary to WMATA’s contention, 18 DCMR §§ 2213.4 and 2206.1 prescribe a

sufficiently specific standard of care for vehicle operators to warrant a negligence per se

instruction. Traffic Regulation 2213.4 states that “[a]n operator shall, when operating a vehicle,

                                                 13
give full time and attention to the operation of the vehicle.” This regulation does more than

simply require a driver to pay attention, but demands “full attention,” which, as the plaintiff

notes, requires a driver to “not be distracted, and not be engaging in other activities while driving

(certainly a problem in these days of multitasking and technology).”11 Pl.’s Opp’n Mot. New

Trial, ECF No. 73, at 8.

         Similarly, 18 DCMR § 2206.1 also sets forth a specific standard of conduct. The

regulation states that “[n]o person shall start a vehicle which is stopped, standing or parked

unless and until the movement can be made with reasonable safety.” The plaintiff correctly

observes that Regulation 2206.1 “specifically applies to beginning to move your vehicle before it

is safe to do so. It speaks to a driver understanding his/her surroundings and checking to make

sure everything is safe before starting.” Pl.’s Opp’n Mot. New Trial, ECF No. 73, at 8.

         Indeed, the two challenged regulations are just as specific as the other five traffic

regulations that WMATA concedes were properly incorporated into the Court’s negligence per

se jury instruction. In addition to challenged regulations §§ 2213.4 and 2206.1, for example, the

Court instructed the jury that violation of 18 DCMR § 2204.2 would constitute negligence per

se. The latter regulation provides that “[n]o person shall turn a vehicle to enter a private road or

driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway

unless and until such movement can be made with reasonable safety” (emphasis added). Like 18

DCMR § 2206.1, this regulation also prescribes reasonable conduct.12 WMATA provides no


11
  As further support for the point that 18 DCMR § 2213.4 sets forth specific guidance, the plaintiff notes that in
Washington v. A & H Garcias Trash Hauling Co., 584 A.2d 544, 547 (D.C. 1990), the court found a bicyclist
contributorily negligent as a matter of law for failing to adhere to the regulation. Pl.’s Opp’n Mot. New Trial, ECF
No. 73, at 7.
12
   The Court also instructed the jury that either WMATA or third-party defendant Woodson would be negligent per
se if the jury found one or the other violated the following regulations: Regulation 2207.4 (“The driver of a vehicle
intending to leave a public roadway by turning left between intersections shall yield the right-of-way to any vehicle
approaching from the opposite direction which is so close as to constitute an immediate hazard.”); Regulation

                                                         14
basis for distinguishing § 2206.1, which it argues is too general to warrant a negligence per se

instruction, from § 2204.2, which also incorporates a “reasonable[ness]” standard for guiding a

driver’s conduct.

         Additionally, the two regulations to which WMATA objects in this case are similar in

specificity to the traffic regulations that the D.C. Circuit determined warranted a negligence per

se instruction in Burns. Among the regulations addressed in Burns were 18 DCMR § 2200.3,

which states, in relevant part, that “no person shall drive a vehicle on a street or highway at a

speed greater than is reasonable and prudent under the conditions and having regard to the actual

and potential hazards then existing;” and § 2200.5, which provides that “[t]he driver of every

vehicle shall, consistent with requirements of this section, drive at an appropriate reduced speed

when approaching and crossing an intersection . . . or by reason of weather . . . .” Burns, 114

F.3d at 223 n.4. These regulations direct a driver to be “reasonable and prudent” and to drive at

“an appropriate reduced speed,” which, just like the two regulations at issue in the case before

the Court, direct the driver to operate a vehicle after carefully assessing the traffic situation

presented.

         3. WMATA Presented No Evidence at Trial to Establish that its Bus Driver’s Failure to
            Comply with Applicable Regulations was Excusable

         Finally, WMATA argues that “[t]he highly prejudicial nature of [the negligence per se]

instruction was exacerbated by the fact that the instruction required the jury to find WMATA

negligent if it found that WMATA violated any of these regulations, as opposed to merely

providing evidence of negligence for the jury to weigh.” WMATA Mem., ECF No. 70, at 7. A

2204.3 (“No person shall turn any vehicle to enter a private road or driveway, or otherwise turn a vehicle from a
direct course or move right or left upon a roadway without giving an appropriate signal in the manner provided in
this chapter if any other traffic may be affected by the movement.”); Regulation 2205.1 (“Required stop or turn
signals shall be given by using the hand and arm, by a signal lamp or lamps, or by means of a mechanical signal
device, except as otherwise provided in this section.”); or Regulation 2204.4 (“A signal of intention to turn right or
left when required shall be given continuously during not less than the last one hundred feet (100 ft.) traveled by the
vehicle before turning.”).

                                                          15
jury should be instructed that the violation of a statute is merely evidence of negligence, pursuant

to D.C. Standardized Civil Jury Instruction § 5.10, and not negligence as a matter of law, “[i]f a

party charged with statutory or regulatory negligence produces competent evidence tending to

explain or excuse his or her violation of the statutory or regulatory standard.” 13 Perkinson v.

Gilbert/Robinson, Inc., 821 F.2d 686, 692 (D.C. Cir. 1987). At trial, WMATA presented no

evidence to excuse any alleged violation of traffic regulations by its employee bus driver.

         According to WMATA, the bus driver testified that he assessed traffic conditions before

accelerating, and that was “clearly adequate to explain any alleged violation of the regulations in

issue . . . .” WMATA Reply Mot. New Trial, ECF No. 74, at 4. The testimony WMATA cites

does not offer an excuse or explanation for violation of traffic regulations, but rather merely

reflects an effort to prove that no violation occurred. In Perkinson v. Gilbert/Robinson, Inc., 821

F.2d 686 (D.C. Cir. 1987), the defendant attempted a similar argument, asserting that “its denial

that a violation [of a statute] occurred at all should be considered an explanation or excuse for

the alleged violation.” Id. at 692. The D.C. Circuit found this argument “labored,” explaining

that “[b]ecause an excuse or explanation can only arise if a violation did occur, a denial is

obviously not the sort of ‘explanation’ that [rebuts a negligence per se charge].” Id.

         Here, WMATA proffers an argument identical to the one rejected in Perkinson, and one

that likewise finds no support before this Court. WMATA did not present evidence or argue that

its bus driver’s failure to comply with applicable traffic regulations was explainable or should

otherwise be excused. On the contrary, WMATA contended that its bus driver fully complied



13
  Perkinson reiterated that D.C. law follows the approach of the Restatement (Second) of Torts (1965), which
recognizes five categories of excuses that would remove a violation of a statute from the realm of negligence per se:
(a) the violation is reasonable because of the actor’s incapacity; (b) he neither knows nor should know of the
occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an
emergency not due to his own misconduct; (e) compliance would involve a greater risk of harm to the actor or to
others. 821 F.2d at 692 n.9 (citing Restatement (Second) of Torts § 288A (1965)).

                                                         16
with the regulations. The jury, however, found otherwise. See Bauman v. Sragow, 308 A.2d

243, 244 (D.C. 1973) (“Violation of traffic regulations may, of course, constitute negligence per

se. Whether the applicable regulations were violated, however, and whether their violation was

the proximate cause of the collision, are questions of fact for the jury unless reasonable persons

could draw but one conclusion from the evidence.”).

        Given the absence of evidence that would excuse or explain the bus driver’s violation of

the traffic regulations, WMATA’s argument that the Court should have instructed the jury that

violation of 18 DCMR §§ 2213.4 and 2206.1 was only evidence of negligence, in accordance

with D.C. Standardized Civil Jury Instruction § 5.10, is wrong. As the plaintiff notes, “WMATA

ignores D.C. law, cited in the comment to Jury Instruction 5.10 itself, holding that ‘it is

reversible error to give only an evidence of negligence instruction and not the negligence per se

instruction . . . where the defendant has offered no excuse or explanation for his violation of the

statute.’” Pl.’s Opp’n Mot. New Trial, ECF No. 73, at 4-5 (quoting 1-5 Civ. Jury Instr. D.C.

§ 5.10 (2011), which cites Perkinson, 821 F.2d at 692).

        C. Any Alleged Error in Instructing the Jury Regarding the Two Traffic
           Regulations was Harmless

        Even assuming, arguendo, that violations of 18 DCMR §§ 2213.4 or 2206.1 do not

constitute negligence per se, WMATA’s motion for new trial must nonetheless be denied. “It is

well established that challenges to jury instructions are subject to the harmless error rule.” Bell

Helicopter Textron, 999 F.2d at 559. Pursuant to Federal Rule of Civil Procedure 61, reversal is

appropriate only if “the trial court’s error could have affected the substantial rights of the

parties.” Id.; FED. R. CIV. P. 61 (“Unless justice requires otherwise, no error . . . by the court . . .

is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or

otherwise disturbing a judgment or order. At every stage of the proceeding, the court must

                                                   17
disregard all errors and defects that do not affect any party’s substantial rights.”). This means

that the error “must have been prejudicial: It must have affected the outcome of the

proceedings.” Evans v. Wash. Metro. Area Transit Auth., No. 08-cv-1629, 2011 WL 4599788, at

*3 (D.D.C. Oct. 6, 2011) (quoting Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493

F.3d 160, 168 (D.C. Cir. 2007)).

       Although the verdict sheet did not indicate the precise basis for the jury’s conclusion that

WMATA was negligent, there is no evidence that inclusion of the two challenged regulations in

the negligence per se instruction affected the outcome of the case. WMATA argues that the jury

should have been instructed that violation of 18 DCMR §§ 2213.4 or 2206.1 would be evidence

of negligence, rather than negligence as a matter of law. Yet, even if the jury had been instructed

as WMATA now suggests, and provided with both a negligence and negligence per se

instruction that referenced different traffic regulations, the jury still would have been required to

find the same predicate facts in order to reach a finding of negligence or of negligence per se. In

other words, even if the jury considered the two challenged regulations as evidence of negligence

they would most likely have reached the same verdict.

       The jury was presented with significant evidence that supported a finding that WMATA’s

bus driver was negligent. The plaintiff and eyewitness Patricia Shelton both testified that the bus

driver was distracted by attractive women at the bus stop and did not assess traffic conditions

before moving forward. Trial Tr. (Rough), Sept. 22, 2011 AM, at 9-16 (testimony of Patricia

Shelton); id. at 71 (testimony of plaintiff Margaretta Sibert-Dean). Moreover, five eyewitnesses

testified that Ms. Woodson’s vehicle was in front of the bus when the bus began accelerating.

Trial Tr. (Rough), Sept. 22, 2011 (testimony of Patricia Shelton and plaintiff Margaretta Sibert-

Dean); Trial Tr. (Rough), Sept. 23, 2011 (testimony of Norma Jean Woodson); Trial Tr.



                                                 18
(Rough), Sept. 27, 2011 (testimony of Rochelle Lewis and Michael Cooper).       Indeed, the

WMATA bus driver was the only witness who could not recall seeing Ms. Woodson’s vehicle in

front of the bus before the accident. Trial Tr. (Rough), Sept. 27, 2011, at 66. This evidence

“clearly supports the jury’s conclusion that WMATA’s bus driver was negligent regardless of

whether it was the result of negligence per se or negligence.” Pl.’s Opp’n Mot. New Trial, ECF

No. 73, at 11.

IV.    CONCLUSION

       The Court concludes that the jury in this case was properly instructed, in accordance with

D.C. Standardized Civil Jury Instruction § 5.09, that an unexplained violation of 18 DCMR §§

2213.4 or 2206.1 would constitute negligence per se. Furthermore, even if violation of these two

regulations should have been presented to the jury merely as evidence of negligence, any error in

the instructions as given was harmless. Accordingly, WMATA’s motion for a new trial is

denied. An Order consistent with this Memorandum Opinion will be entered.


DATED: DECEMBER 4, 2011                                     /s/ Beryl A. Howell
                                                            BERYL A. HOWELL
                                                            United States District Judge




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