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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 18-CV-191

                           MELANNE CIVIC, APPELLANT,

                                         v.

   SIGNATURE COLLISION CENTERS, LLC and H.P. WEST END, LLC, APPELLEES.

                          Appeal from the Superior Court
                           of the District of Columbia
                                  (CAB-436-16)

                      (Hon. Hiram E. Puig-Lugo, Trial Judge)

(Argued October 8, 2019                                Decided December 19, 2019)

      Gregory S. Smith for appellant. Lawrence S. Lapidus was on the brief for
appellant.

      Harry J. Carleton for appellee Signature Collision Centers, LLC.

      Charles L. Simmons, Jr., for appellee H.P. West End, LLC.

      Before GLICKMAN, BECKWITH, and MCLEESE, Associate Judges.

      MCLEESE, Associate Judge:        Appellant Melanne Civic sued appellees

Signature Collision Centers, LLC and H.P. West End, LLC, alleging that their

negligence was responsible for injuries she suffered in a fall. A jury found that

Signature and H.P. West End had been negligent, but that Ms. Civic’s contributory
                                          2

negligence barred her from recovering. Ms. Civic argues on appeal primarily that

the trial court erroneously declined to instruct the jury on the issue of per se

negligence. We affirm.



                                         I.



      Except as indicated, the following facts appear to be undisputed. In February

2013, Ms. Civic fell on a “handicap ramp” while walking out of an automobile-repair

shop operated by Signature and owned by H.P. West End. Ms. Civic testified that

she fell because of an unmarked vertical and horizontal gap between a landing and

the ramp. Ms. Civic introduced expert testimony that the vertical component of the

gap was two to three inches and that the gap was inconsistent with the requirements

of the District of Columbia Building Code. According to Ms. Civic’s expert, the

gap was unsafe and contrary to applicable standards of care.



      The defense elicited testimony that Ms. Civic had previously gone in and out

of the repair shop, that she did not recall whether she was using the handrail when

she fell, and that she was carrying a boot and a cell phone when she fell.
                                          3

      Ms. Civic asked the trial court to instruct the jury that if the jury found that

Signature and H.P. West End violated D.C. Building Code § 1003.6, then the jury

was required to find that Signature and H.P. West End were negligent. At the time

of the incident at issue, § 1003.6 required among other things that a path of egress

consist of a “continuous unobstructed path of vertical and horizontal egress travel.”



      The trial court declined to give the requested instruction. The trial court did,

however, give an instruction that if the jury found that Signature and H.P. West End

violated § 1003.6, the jury could consider that violation as evidence of negligence.

Relatedly, the trial court instructed the jury, over Ms. Civic’s objection, that if the

jury found that Ms. Civic’s negligence was a proximate cause of her injuries, the

jury could not find Signature and H.P. West End liable.



                                          II.



      Ms. Civic’s principal challenge is to the jury instructions. Whether the jury

instructions were accurate is a question of law that we decide de novo. Washington

Inv. Partners of Del., LLC v. Sec. House, K.S.C.C., 28 A.3d 566, 577 (D.C. 2011).

We find no error.
                                          4

      “In the District of Columbia, a plaintiff in a negligence action generally cannot

recover when [the plaintiff] is found contributorily negligent.” Washington Metro.

Area Trans. Auth. v. Young, 731 A.2d 389, 394 (D.C. 1999). That bar on recovery

does not apply, however, if the plaintiff can show that the defendant’s conduct

violated a statute or regulation intended to give “classes of persons likely to be

careless . . . greater protection than that which might be afforded at common law.”

Martin v. George Hyman Constr. Co., 395 A.2d 63, 69 (D.C. 1978). We have often

referred to the latter principle as the doctrine of “negligence per se.” E.g., District

of Columbia v. Mitchell, 533 A.2d 629, 639 (D.C. 1987). A plaintiff may rely on

that doctrine only if the plaintiff “is a member of the class to be protected by the

statute.” Night & Day Mgmt., LLC v. Butler, 101 A.3d 1033, 1039 (D.C. 2014).



      To the extent that § 1003.6 is viewed as merely part of the general Building

Code, we do not see any basis upon which to conclude that § 1003.6 was intended

to provide a class of unusually vulnerable persons with heightened protections. See,

e.g., Phillips v. Fujitec Am., Inc., 3 A.3d 324, 330 n.17 (D.C. 2010) (“Regardless,

the contention that the building code imposes a higher duty (amounting to negligence

per se) on appellees is wrong. We have held that such regulations only impose a

standard of reasonable care, or, more accurately, they serve to indicate what the

standard of reasonable care might be. We agree that the appellees owed a duty of
                                           5

reasonable care to Ms. Phillips, but her own conduct, from which no reasonable juror

could find that she was not contributorily negligent, still bars recovery.”) (citations

omitted); District of Columbia v. Brown, 589 A.2d 384, 386 (D.C. 1991) (although

Elevator Code had purpose of ensuring safety of general public, Elevator Code was

not intended to protect persons from their own negligence, and violation of Elevator

Code therefore did not support theory of per se negligence). The trial court thus

correctly declined to instruct the jury on per se negligence in the circumstances of

this case.



      We do wish to clarify two points. First, there is some indication that § 1003.6

may relate to fire-code provisions or might be understood as directed at providing

protections for persons with disabilities. The current case does not involve a plaintiff

with a disability or who was fleeing from or responding to a fire or other emergency,

and we express no view about the applicability of the doctrine of per se negligence

in such cases. Second, the broad language in cases such as Phillips should not be

understood to categorically foreclose the possibility that a provision in a building or

housing code could provide a predicate for an instruction as to per se negligence. To

the contrary, this court has held that, in at least some circumstances, provisions of

the Housing Code would provide a predicate for application of the principle of per

se negligence. See Scoggins v. Jude, 419 A.2d 999, 1005-06 (D.C. 1980) (policy
                                          6

underlying Housing Code generally precludes landlord from relying on contributory

negligence based on theory that tenants or guests should not have remained in

premises or should have repaired premises themselves).



      Ms. Civic’s arguments do not persuade us that the trial court in this case was

required to give an instruction on per se negligence. First, Ms. Civic relies on the

following language from our decision in Ceco Corp. v. Coleman, 441 A.2d 940, 946

(D.C. 1982) (internal quotation marks omitted):

             The general rule in this jurisdiction is that “where a
             particular statutory or regulatory standard is enacted to
             protect persons in the plaintiff’s position or to prevent the
             type of accident that occurred, and the plaintiff can
             establish [the plaintiff’s] relationship to the statute,
             unexplained violation of that standard renders the
             defendant negligent as a matter of law.


Considered in isolation, that language would seem to make the doctrine of per se

negligence applicable to all statutes or regulations that have a public-safety purpose.

As we have already explained, however, supra at 4-5, the analysis in and holdings

of our prior and subsequent cases make clear that the doctrine is not so sweeping, at

least in the context of contributory negligence. Rather, we have found statutes or

regulations to be a basis for lifting the contributory-negligence bar when those

statutes or regulations were directed at “protect[ing] persons from their own

negligence.” Brown, 589 A.2d at 387.
                                          7



      Second, Ms. Civic relies heavily on our decision in Scoggins, 419 A.2d 999.

Specifically, Ms. Civic reads that decision as standing for the proposition that

violations of the Housing Code are generally per se negligent, thus lifting the

contributory-negligence bar, unless the plaintiff engaged in “unreasonable conduct

which may have added to a dangerous condition.” Id. at 1006. Ms. Civic’s reading

of Scoggins runs headlong into our decisions in Phillips and Brown, which rejected

the idea that violations of building and elevator codes are generally per se negligent.

Phillips, 3 A.3d at 330 n.17; Brown, 589 A.2d at 386.



      In any event, we do not share Ms. Civic’s interpretation of Scoggins. Scoggins

held that, in general, “the Housing Regulations impose only a duty of reasonable

care upon owners of rental property.” 419 A.2d at 1005. We thus further held that

contributory negligence is generally a defense to a claim of negligence resting on a

violation of the Housing Regulations. Id. (“[I]f there is sufficient evidence tending

to show a tenant (or a tenant’s guest), by act or omission, unreasonably increased the

exposure he or she otherwise would have had to danger created by a landlord’s

failure to comply with the Housing Regulations, the jury should be allowed to

consider whether there was contributory negligence. No public policy would be

frustrated.”) (citation omitted). We identified an exception to the latter principle,
                                          8

however: landlords generally are not permitted to base a claim of contributory

negligence on the conduct of a tenant or guest in simply using the premises or failing

to themselves repair the premises, because such defense would “undermine the

public policy implicit in the Housing Regulations.” Id. at 1004-05. Applying these

principles, we held that the trial court properly declined to instruct the jury on the

theory that the tenant and guest in the case were contributorily negligent by simply

remaining in and moving about the apartment even though there was a crack in the

apartment’s ceiling. Id. at 1005-06. Finally, we held that the jury ought to have

been allowed to consider whether the tenant was contributorily negligent by hanging

plants in the ceiling (or failing to remove the plants), which may have caused the

apartment’s ceiling to collapse. Id. at 1006. On the last point, we explained that

             In contrast with the policy permitting a tenant to remain in
             a substandard living room and to take reasonable steps to
             protect his or her property–for which there is no
             reasonable alternative–there is no public policy that would
             suggest barring the landlord from alleging a tenant’s
             contributory negligence through unreasonable conduct
             which may have added to a dangerous condition.

Id.

      In sum, Scoggins is entirely consistent with our conclusion in this case that

violations of the Building Code generally do not amount to per se negligence barring

the defense of contributory negligence.
                                           9

      Third, Ms. Civic relies on a federal decision, Perkinson v. Gilbert/Robinson,

Inc., 821 F.2d 686 (D.C. Cir. 1987). Perkinson does support Ms. Civic’s position.

In that case, the D.C. Circuit held that it was per se negligence to violate the Building

Code by failing to put a non-slip surface on stairs. Id. at 692. In reaching that

conclusion, the D.C. Circuit relied on the previously cited broad language in our

decision in Ceco, 441 A.2d at 945. Perkinson, 821 F.2d at 692. Perkinson is not

binding on this court. M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (decisions of

D.C. Circuit after February 1, 1971, are not binding on D.C. Court of Appeals); see

also, e.g., Church of Scientology v. Foley, 640 F.2d 1335, n.63 (D.C. Cir. 1981) (en

banc) (D.C. Court of Appeals, not D.C. Circuit, is “the final expositor of local law”)

(internal quotation marks omitted). Moreover, Perkinson was decided in 1987,

before decisions such as Phillips and Brown clearly established that violations of

general codes, such as the Building Code and the Elevator Code, do not generally

constitute per se negligence. In sum, we are bound to follow our subsequent

decisions, rather than Perkinson. M.A.P., 285 A.2d at 312 (divisions of court are

bound by prior decisions of court).



      Finally, Ms. Civic relies on a second provision -- American National

Standards Institute (ANSI) A117.1 -- that apparently sets additional requirements

for safe walkways. According to Ms. Civic, that provision was adopted as part of
                                          10

the District’s Building Code, and the trial court erroneously barred Ms. Civic’s

expert from testifying to the jury about the provision. To the extent that Ms. Civic’s

argument is directed at the idea that the jury was erroneously deprived of information

that would have been relevant to whether Signature and H.P. West End were

negligent, any error was harmless, because the jury in any event found that Signature

and H.P. West End were negligent. See, e.g., Knight v. Georgetown Univ., 725 A.2d

472, 479 n.7 (D.C. 1999) (error harmless where court could say with fair assurance

that error did not substantially sway jury’s verdict). It is not clear whether Ms. Civic

is also relying on ANSI A117.1 as a basis upon which the trial court ought to have

instructed the jury about per se negligence. If so, ANSI A117.1 would not have

provided such a basis in the circumstances of this case, for the reasons stated above

with respect to § 1003.6 of the Building Code.



      For the foregoing reasons, the judgment of the Superior Court is



                                 Affirmed.
