                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA

MARY JANE OWEN,

                         Plaintiff,

                         v.                              Civil Action No. 10-01540 (BAH)
                                                         Judge Beryl A. Howell
UNITED STATES OF AMERICA,

                         Defendant.




                                      MEMORANDUM OPINION

        Plaintiff Mary Jane Owen filed a Complaint alleging that the defendant United States of

America is liable for damages under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§

1346(b), 2671, et seq., because the plaintiff was injured using a wheelchair lift negligently

maintained and operated by an unknown employee of the John F. Kennedy Center for the

Performing Arts (“Kennedy Center”).1 See Complaint (“Compl.”), ECF No. 1, ¶¶ 1, 6, 8-10.

Following a period of discovery, the defendant filed a Motion for Summary Judgment in which it

argues, inter alia, that the plaintiff has not made out a prima facie case of negligence. See ECF

No. 13. For the reasons explained below, the Court agrees and will GRANT the defendant’s

motion for summary judgment.




1
 “[T]he Kennedy Center constitutes a federal agency covered by the FTCA.” Polcari v. John F. Kennedy Ctr. for
Performing Arts, 712 F. Supp. 230, 231-32 (D.D.C. 1989) (citing 20 U.S.C. §§ 76h, et seq.); accord Makarova v.
United States, 201 F.3d 110, 113-14 (2d Cir. 2000).
I.       FACTUAL AND PROCEDURAL HISTORY2

         The plaintiff is a former employee of SD&A Teleservices, Inc. (“SD&A”). See Def.’s

Statement of Facts Not in Material Dispute (“Def.’s Facts”),3 ECF No. 13-3, ¶ 1; Pl.’s Mem. in

Supp. of Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 14-3, at 2. SD&A is a

private “telemarketing firm retained by the Kennedy Center to conduct on-site telephone

solicitation and fundraising campaigns.” Def.’s Facts ¶ 1; Pl.’s Opp’n at 2.4 The plaintiff at the

time of the incident at issue in this lawsuit worked in an SD&A office located on what is known

as the “second tier” of the Kennedy Center building. See Def.’s Facts ¶ 2; Pl.’s Opp’n at 2.

         The plaintiff has been a partial quadriplegic since 1986 and “is confined to her motorized

wheelchair for most of the day.” Def.’s Facts ¶ 5; Pl.’s Opp’n at 2. At all times relevant to this

action, the plaintiff “used a Pronto M91 model motorized wheelchair manufactured by the

Invacare Corporation.” Def.’s Facts ¶ 6 (citing Deposition of Mary Jane Owen (“Owen Dep.”),

ECF No. 13-5, at 15-16; Expert Report of Jeffrey E. Fernandez, Ph.D. (“Fernandez Report”),

ECF No. 13-7, at 7). The wheelchair in its entirety—the frame plus the battery—weighs 273

pounds. See Def.’s Facts ¶ 8 (citing Fernandez Report at 7). The plaintiff at the time of the

incident weighed approximately 222 pounds, so the combined weight of the plaintiff and the

2
  The Complaint alleges minimal factual allegations and the plaintiff failed to file “a separate and concise statement”
of facts that points to “genuine issue[s] necessary to be litigated, which shall include references to the parts of the
record relied on to support the statement.” Local Civil Rule 7(h)(1). The Court relies heavily on the Defendant’s
Statement of Facts, see ECF No. 13-3, and “will treat all of the factual assertions in the [Defendant’s] Statement of
Material Facts Not in Dispute as undisputed.” Thompson v. Linda & A., Inc., 779 F. Supp. 2d 139, 146 (D.D.C.
2011); see also FED. R. CIV. P. 56(c) (“A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by . . . citing to particular parts of materials in the record . . . or . . . showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.”).
3
 The defendant titled both ECF Nos. 13-2 and 13-3 “Defendant’s Memorandum of Points and Authorities in
Support of the Motion for Summary Judgment.” ECF No. 13-3, however, contains the “Statement of Facts,” while
ECF No. 13-2 is the “Memorandum in Support.” The Court will refer to ECF No. 13-3 as “Def.’s Facts” and to
ECF No. 13-2 as “Def.’s Mem.”
4
 The plaintiff was not an employee of the Kennedy Center or the federal government at any time relevant to this
action. See Def.’s Facts ¶ 4; Pl.’s Opp’n at 2.

                                                              2
wheelchair in its entirety (“excluding additional weight of clothing, bags, or other personal

effects”) was nearly 500 pounds. Def.’s Facts ¶¶ 9-10 (citing Fernandez Report at 8-10, 14).

        The only way for the plaintiff to reach her place of employment on the second tier of the

Kennedy Center was to use the Garaventa GSL-1 model wheelchair lift. See Def.’s Facts ¶¶ 11-

13 (citations omitted); Pl.’s Opp’n at 2; Def.’s Mem. in Supp. of Mot. for Summ. J. (“Def.’s

Mem.”), ECF No. 13, at 4.5 “The GSL-1 lift consisted of a wall-mounted track to which was

affixed a platform that ran along the track and lifted the user above the stairs.” Def.’s Mem. at 4

(citing Fernandez Report at 6 (Fig. 2), 13 (Fig. 8)). The platform was equipped with ramps — or

platform lips — “at its front, side, and rear,” as well as “with two bar guard safety arms at the

front and rear of the lift.” Def.’s Mem. at 5; Def.’s Facts ¶¶ 18-19 (citing Fernandez Report at 6,

13). The weight capacity limit of this lift is 450 pounds. See Def.’s Mem. at 4 (citing Fernandez

Report at 4).

        The plaintiff “could not use the lift without the assistance of another person because it

was operated by a control panel mounted on the wall at the top of the stairs near the entrance to

the SD&A office.” Def.’s Mem. at 5 (citing Owen Dep. at 42-44); Def.’s Facts ¶ 20 (same).

“Using the wall-mounted control panel, the person assisting [the plaintiff] . . . would insert a key

into the control panel to turn on the platform controls of the lift.” Def.’s Mem. at 5; see also

Def.’s Facts ¶ 22 (citing Deposition of Amy Sloan (“Sloan Dep.”), ECF No. 13-6, at 15). The

plaintiff would then drive her wheelchair onto the platform. See Def.’s Mem. at 4; see also

Def.’s Facts ¶ 17 (citing Owen Dep. at 44-45). “Once [the p]laintiff was in place on the

platform, the control panel operator would then press a button that engaged the lift’s safety

5
 The description of the features of the lift are taken from Def.’s Mem., ECF No. 13-2, at 4-6. The plaintiff agreed
with this description. See Pl.’s Opp’n at 2 (“The stairs had a wheelchair lift, accurately described in the . . .
Defendant’s Memorandum at 4-6.”). The Court assumes that the plaintiff refers to the defendant’s Memorandum,
ECF No. 13-2, and not the defendant’s Statement of Facts, ECF No. 13-3, based on the page numbers cited and the
contents of the documents. See supra note 3.

                                                         3
features.” Def.’s Mem. at 5 (citing Owen Dep. at 45); Def.’s Facts ¶ 23 (same). “[T]he lift

would then begin to operate and the platform would move along the track and deliver [the

p]laintiff to the end of the track at the top of the stairs.” Def.’s Mem. at 5; Def.’s Facts ¶ 27

(citing Owen Dep. at 42-45). “The control panel operator would then turn the key again, which

would disengage the bar guard safety arms and platform lips, allowing [the p]laintiff to drive off

the lift platform.” Def.’s Mem. at 5-6; Def.’s Facts ¶ 28 (citing Sloan Dep. at 15-16).

        During the plaintiff’s period of employment with SD&A,6 she experienced recurring

problems with the lift as it sometimes stalled or “stopped mid-route, trapping the [p]laintiff until

the lift could be re-started.” Pl.’s Opp’n at 2 (citing Owen Dep. at 55-57; Sloan Dep. at 18-24).

“With regularity — at least once weekly — the lift would stall out when [the p]laintiff was riding

it.” Def.’s Facts ¶ 29 (citing Owen Dep. at 55-56; Sloan Dep. at 18-21, 24). “Sometimes the lift

could be restarted after waiting a while; other times, Kennedy Center technicians would have to

be summoned to repair the lift while [the p]laintiff remained on it.” Def.’s Facts ¶ 30 (citing

Owen Dep. at 56; Sloan Dep. at 22-23, 29). Though the Kennedy Center “properly maintained”

and “serviced” the lift on multiple occasions “when the need arose,” the plaintiff continued to

experience these problems and made several complaints regarding its operation. Def.’s Facts ¶

15 (citing Fernandez Report at 7, 14); Def.’s Facts ¶ 29; Pl.’s Opp’n at 3. One stalling incident

occurred where the plaintiff and her wheelchair had to be physically removed from the lift

because the lift would not restart. See Def.’s Facts ¶ 31 (citing Owen Dep. at 57; Sloan Dep. at

23).

        About three months before the incident in question, the Kennedy Center’s Director of

6
  The record is inconsistent about how long the plaintiff worked for SD&A at the Kennedy Center. In the plaintiff’s
answers to the defendant’s interrogatories, she suggests she was an employee only for “a couple of months,” see
Def.’s Mot. Summ. J., ECF No. 13-4, Ex. C (Pl.’s Answers to Def.’s Interrogatories (“Pl.’s Answers”)) ¶ 1, while
other places in the record suggest that she was there longer. See Pl.’s Opp’n at 6 (noting that employees observed
the wheelchair lift malfunctioning three months before the August 2008 incident).

                                                         4
Accessibility, Betty Siegel (“Director of Accessibility”), “met with [the p]laintiff and inspected

and tested the lift.” Def.’s Facts ¶ 32 (citing Declaration of Betty Siegel (“Siegel Decl.”) ¶¶ 5-9);

see also Pl.’s Opp’n at 6 (“[The plaintiff] met with . . . Betty Siegel, on or about May 21, 2008”

and the “[p]laintiff, Ms. Siegel, and [two] other employees of the Kennedy Center witnessed the

wheelchair lift both malfunctioning and functioning properly.”).7 The Director of Accessibility

“then asked [the p]laintiff to inform her” of the plaintiff’s weight and the weight of the

wheelchair so that the Director could assess her safety on the lift. Def.’s Facts ¶ 35 (citing Siegel

Decl. ¶ 9); see also Pl.’s Opp’n at 6 (“According to the email, Ms. Siegel alleges that the [sic]

asked the [p]laintiff for the combined weight of the [p]laintiff and her chair.”). The plaintiff

“promised to provide [the Director of Accessibility] with this information but never did.” Def.’s

Facts ¶ 36 (citing Siegel Decl. ¶ 9); see also Pl.’s Opp’n at 6 (“There is no record of any follow-

up.”). In fact, the combined weight of the plaintiff and her wheelchair “exceeded the weight

capacity limit of the wheelchair lift by almost 50 pounds.” Def.’s Facts ¶ 37 (citing Fernandez

Report at 11-12).

         On the evening of August 29, 2008, the plaintiff again used the lift. See Def.’s Facts

¶ 38. The lift malfunctioned, and “[a]t some point during her use of the lift either [the p]laintiff

or the co-worker assisting her[8] manually raised the safety bar guard [arm] located behind [the

p]laintiff at the rear of the lift platform.” Def.’s Facts ¶¶ 38-39 (citing Fernandez Report at 12).9


7
  The Defendant’s Statement of Facts sometimes cites to the Declaration of Betty Siegel, which the defendant did
not attach to any of its filings. The Declaration is therefore not part of the record. Most of the factual statements
from the Defendant’s Statement of Facts, which cite this missing Declaration and are included in this Opinion, are
repeated — though not supported by a record cite — in the Plaintiff’s Memorandum in Opposition.
8
 The co-worker “is the only other eyewitness to the incident and could not be located by either party” in the course
of discovery. Def.’s Mem. at 7 n.6.
9
 “The lift will not operate when the safety arms are in their vertical, upright positions.” Def.’s Facts ¶ 25 (citing
Sloan Dep. at 15; Fernandez Report at 6). “If the lift were, for whatever reason, to stop mid-course, the safety arms
would remain locked in their engaged, horizontal positions; the only way for the user to get off the lift in such a

                                                           5
The plaintiff and her wheelchair then “toppled over, backwards, off the lift platform and onto the

floor.” Def.’s Facts ¶ 40 (citing Fernandez Report at 12); see also Pl.’s Opp’n at 3.10 The co-

worker went for help at the SD&A offices, and the plaintiff’s supervisor called Kennedy Center

security personnel. See Def.’s Facts ¶¶ 41-42 (citing Sloan [Dep.] at 26-27).

           Following this incident, the plaintiff submitted a Standard Form 95 to the General

Counsel’s Office at the Kennedy Center on April 23, 2009 seeking $5,000.00 in property

damages and $1,000,000.00 in personal-injury damages.11 See Pl.’s Opp’n at 3; Def.’s Facts ¶

43; Def.’s Mot. Summ. J., ECF No. 13-4, Ex. D (Letter from Andrew Bederman, Esq., to JoEllen

Dinges, Esq. (Apr. 23, 2009) (“Bederman Letter”)). The plaintiff, however, did not submit with

this Form any medical records or other documentation to support her claim. See Def.’s Facts ¶




situation would be manually to override the safety arms and yank one or both of them back into their vertical,
upright positions.” Def.’s Facts ¶ 26 (citing Sloan Dep. at 15; Fernandez Report at 6).
10
   The plaintiff contends that she was “thrown from the lift platform,” see Pl.’s Opp’n at 3, but due to loss of
consciousness or memory loss she cannot recall what transpired, see Def.’s Mem. at 7 n.5 (citing Owen Dep. at 75,
77); see also Pl.’s Answers ¶ 6 (“[T]he lift came to a sudden stop. Plaintiff’s next clear memory is lying on the floor
at the bottom of the stairs with her wheelchair on top of her.”). Since the safety arms were manually raised,
however, the defendant contends that the plaintiff must have “dr[i]ve[n] her wheelchair up over the engaged
platform lip . . . with the result that she and her wheelchair toppled over, backwards, off the lift platform.” See
Def.’s Facts ¶ 40 (citing Fernandez Report at 12).

11
     According to the U.S. Department of Justice:

           Standard Form 95 is used to present claims against the United States under the [FTCA] for
           property damage, personal injury, or death allegedly caused by a federal employee’s negligence or
           wrongful act or omission occurring within the scope of the employee’s federal employment.
           These claims must be presented to the Federal agency whose employee conduct gave rise to the
           injury.

           Standard Form 95 is not required to present a claim under the FTCA, but it is a convenient format
           for supplying the information necessary to bring an FTCA claim . . . Form 95 must be presented to
           the appropriate federal agency within two years after the claim accrues.

Civil Division Documents & Forms, U.S. DEP’T JUSTICE, http://www.justice.gov/civil/common/docs-forms.html
(last visited Oct. 17, 2012) (emphasis in original).


                                                          6
44; Bederman Letter. On March 12, 2010, the Kennedy Center denied the plaintiff’s claim. See

Def.’s Facts ¶ 45.12

           The plaintiff then filed a Complaint in the United States District Court for the District of

Columbia.13 During discovery, the plaintiff filed a Rule 26(a)(1) Statement listing relevant

documents as well as names of relevant witnesses, see ECF No. 7, as well as a Rule 26(a)(2)

Statement with the names of two medical experts, both treating physicians of the plaintiff, see

ECF No. 8. Although the plaintiff alleged that the experts would testify as to the extent of her

injuries as well as to the cause of them (her fall on August 29, 2008), ECF No. 8 ¶¶ 1-2, the

plaintiff did not submit medical records or any other documents. On July 15, 2011, the

defendant submitted its Rule 26(a)(2) expert report by engineer Jeffrey E. Fernandez, PhD, PE,

CPE, which contains his analysis of the wheelchair lift and the resulting incident. ECF No. 12.14

In his report, Dr. Fernandez concluded that (i) the lift “will fail to operate” if the weight — as in

the case of the plaintiff plus her wheelchair — exceeds 450 pounds; (ii) “[t]he bar guard safety-

arm was manually raised and the wheelchair user intentionally drove over the platform lip”; and

(iii) “[t]he Kennedy Center performed maintenance and repairs as needed on the lift.” Fernandez

Report at 18.


12
  The body of the letter sent on March 12, 2010, from Kennedy Center Assistant General Counsel JoEllen Dinges,
Esq., to the plaintiff’s counsel, Andrew Bederman, Esq., reads in its entirety:

           We have considered, under the [FTCA], the claim for [the plaintiff] that you filed with [the
           Kennedy Center] for an incident that occurred at the Kennedy Center on August 29, 2008. We are
           writing to inform you, as [the plaintiff’s] personal representative, that this claim is hereby denied.
           If your client is dissatisfied with this determination, she may submit a written request for
           reconsideration based on new evidence, or she may file suit in an appropriate United States
           District Court not later than six months after the date of mailing of this letter.

Def.’s Mot. Summ. J., ECF No. 13-4, Ex. E.
13
   This case was originally assigned to Judge Roberts, but was later randomly assigned to the under-signed Judge on
January 21, 2011.
14
     This document is also attached to the defendant’s Motion for Summary Judgment. See ECF No. 13-7.

                                                             7
       The defendant then moved for summary judgment. See ECF No. 13.

II.    LEGAL STANDARD

       Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be

granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247 (1986); Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123

(D.C. Cir. 2011); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Summary judgment is

properly granted against a party who “after adequate time for discovery and upon motion . . .

fails to make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to demonstrate that there

is an “absence of a genuine issue of material fact.” Id. at 323.

       In ruling on a motion for summary judgment, the Court must draw all justifiable

inferences in favor of the nonmoving party, and shall accept the nonmoving party’s evidence as

true. Anderson, 477 U.S. at 255; Estate of Parsons, 651 F.3d at 123; Tao, 27 F.3d at 638. The

Court is only required to consider the materials explicitly cited by the parties, but may on its own

accord consider “other materials in the record.” FED. R. CIV. P. 56(c)(3). For a factual dispute to

be “genuine,” Estate of Parsons, 651 F.3d at 123, the nonmoving party must establish more than

“[t]he mere existence of a scintilla of evidence” in support of its position, Anderson, 477 U.S. at

252, and cannot simply rely on allegations or conclusory statements, Greene v. Dalton, 164 F.3d

671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would

enable a reasonable jury to find in its favor. See Anderson, 477 U.S. at 250. “If the evidence is




                                                 8
merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at

249-50 (citations omitted).

III.     DISCUSSION

         In its motion for summary judgment, the defendant argues that the plaintiff has failed to

make out a prima facie case of negligence because she did not put forth any expert testimony as

to the maintenance and operation of the wheelchair lift as required to establish a standard of care

for negligence claims under District of Columbia common law (“D.C. law”), and, furthermore,

that the doctrine of res ipsa loquitur does not absolve the plaintiff of this requirement. See

Def.’s Mem. at 12, 17; Def.’s Reply in Supp. of Mot. for Summ. J., ECF No. 17 (“Def.’s

Reply”), at 9-10.15 In response, the plaintiff contends “that expert testimony on the standard of

care is unnecessary” because the defendant “violated its duty to inspect and repair a problem,

when repeatedly put on notice,” Pl.’s Opp’n at 1, 7, and “res ipsa loquitur allows the trier of fact

to infer a lack of due care from the mere occurrence of an accident,” Pl.’s Opp’n at 8 (emphasis

in original) (internal quotation marks omitted).16 Since the plaintiff has not established the

applicable standard of care and cannot state a claim for negligence under D.C. law, the Court

must grant the defendant’s motion for summary judgment.



15
  The defendant argues in addition that (i) the plaintiff’s “own negligence proximately contributed to her injuries”
and thus completely bars recovery of damages, see Def.’s Mem. at 13-16; and, relatedly, that (ii) the doctrine of res
ipsa loquitur does not apply because the plaintiff proffers no evidence suggesting that the incident is “of the kind
which ordinarily does not occur in the absence of someone’s negligence,” and because record evidence suggests that
the plaintiff’s voluntary conduct caused her injuries, see id. at 16-17. The Court need not resolve the issue of the
plaintiff’s contributory negligence, which would work to bar both her negligence claim as well as her claim that res
ipsa loquitur applies, since this case is resolved on different grounds.
16
  The plaintiff also argues summarily in her Opposition to the instant motion that the guidelines promulgated under
the Americans with Disabilities Act (“ADA”) establish a standard of care regarding the provision and maintenance
of the lift. See Pl.’s Opp’n at 5-6. She does not raise this argument in her Complaint, and cites no authority for it.
Even assuming, arguendo, that the plaintiff’s argument were correct, she has offered no expert testimony regarding
how that standard of care applies to the particular facts in this case and how any breach of such standard of care
proximately caused the plaintiff’s injury.


                                                          9
         A.     Legal Standard for the FTCA and Negligence under D.C. Law

         “In the FTCA, Congress waived the United States’ sovereign immunity for . . . ‘claims

against the United States, for money damages . . . for injury or loss of property . . . caused by the

negligent or wrongful act or omission of any employee of the Government while acting within

the scope of his office or employment.’” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18

(2008) (quoting 28 U.S.C. § 1346(b)(1)). The FTCA “authorizes private tort actions against the

United States ‘under circumstances where the United States, if a private person, would be liable

to the claimant in accordance with the law of the place where the act or omission occurred.’”

United States v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C. § 1346(b)(1)); accord Paige v.

Drug Enforcement Admin., 665 F.3d 1355, 1362 (D.C. Cir. 2012).

         “To establish negligence, ‘the plaintiff has the burden of proving by a preponderance of

the evidence the applicable standard of care, a deviation from that standard by the defendant, and

a causal relationship between the deviation and the plaintiff’s injury.’” Robinson v. Wash.

Metro. Area Transit Auth., No. 11-cv-0723, 2012 U.S. Dist. LEXIS 60306, at *11 (D.D.C. May

1, 2012) (quoting Varner v. Dist. of Columbia, 891 A.2d 260, 265 (D.C. 2006)); see also Convit

v. Wilson, 980 A.2d 1104, 1123 (D.C. 2009); Hill v. Metro. African Methodist Episcopal Church,

779 A.2d 906, 908 (D.C. 2001); Messina v. District of Columbia, 663 A.2d 535, 537 (D.C.

1995).

         To satisfy the first prong, the “plaintiff must put on expert testimony to establish what the

standard of care is if the subject in question is so distinctly related to some science, profession or

occupation as to be beyond the ken of the average layperson.” Convit, 980 A.2d at 1123; Hill,

779 A.2d at 908; Dist. of Columbia v. Arnold & Porter, 756 A.2d 427, 433 (D.C. 2000). “There

is, however, a partial exception to this rule,” which is that “no expert testimony is needed if the



                                                  10
subject matter is within the realm of common knowledge and everyday experience.” Briggs v.

Wash. Metro. Area Transit Auth., 481 F.3d 839, 845 (D.C. Cir. 2007) (citation omitted). In fact,

D.C. courts have “required expert testimony in a number of cases that, on first blush, appear to

be within the realm of common knowledge.” Id. “For example, the [D.C. Court of Appeals] has

held that the following subjects require expert guidance despite the fact that they might be

familiar to jurors: maintenance of leaning trees; application of hair relaxer; tightness of

handcuffs; cushioning for the ground underneath playground monkey bars; maintenance of street

lights to prevent falling light globes; time frame for ordering building materials on a construction

project; response when an arrestee is found hanging in his cell; and installation of a crosswalk,

instead of a stop sign, light, or crossing guard.” Id. (citations and quotation marks omitted).

Thus, “[t]he case law indicates that the ‘common knowledge’ exception to the expert testimony

requirement is recognized only in cases in which everyday experience makes it clear that jurors

could not reasonably disagree over the care required.” Id.

       A plaintiff’s failure to provide expert testimony to establish a standard of care where she

was required to do so would be fatal to her negligence claim. See Burke v. Air Serv. Int’l, Inc.,

685 F.3d 1102, 1106 (D.C. Cir. 2012) (noting that “under D.C. law, failure to establish the

standard of care is fatal to a negligence claim” (internal quotation marks omitted)); Flax v.

Schertler, 935 A.2d 1091, 1106-07 (D.C. 2007) (upholding summary judgment granted to

defendant because “fatal flaw in [plaintiff’s] case was the lack of an expert witness who would

opine that the [defendants] breached the standard of care”); see also Clark v. Dist. of Columbia,

708 A.2d 632, 634 (D.C. 1997) (affirming a directed verdict for the defendant where the

“appellant’s expert failed to provide sufficient testimony that the District violated a national

standard of care”).



                                                 11
       B.      The Plaintiff Was Required to Proffer Expert Testimony Concerning the
               Maintenance and Operation of a Wheelchair Lift and Failed to Do So.
       In her Complaint, the plaintiff alleged that the defendant owed her “a duty [to] ensure that

the wheelchair lift was properly maintained and repaired in a safe manner, with reasonable care

and prudence.” Compl. ¶ 8. She specifies that the defendant “breach[ed]” this duty when it

“operated and maintained the wheelchair lift in a negligent manner and carelessly failed to

properly inspect and repair the malfunctioning lift, properly operate the wheelchair lift while the

[p]laintiff was using it, failing to warn disabled patrons of a malfunctioning wheelchair lift, and

otherwise being negligent.” Id. ¶ 9. These allegations plainly rely upon the breach of a standard

of care regarding the proper maintenance and repair of a wheelchair lift.

       Nevertheless, the plaintiff has proffered no expert testimony regarding the myriad issues

surrounding the safety of wheelchair lifts. Under D.C. law, as noted, courts have “required

expert testimony regarding the applicable standard of care, unless the subject matter is ‘within

the realm of common knowledge and everyday experience.’” Arnold & Porter, 756 A.2d at 433;

see also Briggs, 481 F.3d at 845; Otis Elevator Co. v. Tuerr, 616 A.2d 1254, 1257 (D.C. 1992);

accord Godfrey v. Iverson, 559 F.3d 569, 572 (D.C. Cir. 2009) (noting that “[r]ecently. . . the

D.C. Court of Appeals has required expert testimony in a wider variety of cases, even in those

that might initially seem to fall within jurors’ common knowledge” and “expert testimony is

routinely required in negligence cases . . . which involve issues of safety, security and crime

prevention.”) (internal citations and quotation marks omitted); D.C. Hous. Auth. v. Pinkney, 970

A.2d 854, 864-65 (D.C. 2009) (finding that expert’s testimony in negligence case involving an

elevator accident “was adequate to establish the applicable standard of care”).

       In this case, the Court finds that the care and maintenance of a wheelchair lift are not

within the “common knowledge and everyday experience” of jurors, and the plaintiff must set


                                                 12
forth expert testimony as to the applicable standard of care. As the defendant indicates, “[h]ow a

wheelchair lift operates, how it might malfunction, how its safety features can be overridden, or

how a rider could be injured thereby are obviously not matters within the realm of common

knowledge.” Def.’s Mem. at 12. The plaintiff should therefore have proffered an expert witness

to establish the standard of care for the defendant’s maintenance and care of the wheelchair lift.

See Davis v. Bud & Papa, Inc., No. 11-cv-1001, 2012 U.S. Dist. LEXIS 110775, at *7-8 (D.D.C.

Aug. 8, 2012) (noting that expert testimony is required when “the subject matter is too technical

for the lay juror”) (quoting Dist. of Columbia v. Hampton, 666 A.2d 30, 36 (D.C. 1995)); see

also Burke v. Air Serv Int’l, Inc., 775 F. Supp. 2d 13, 20 (D.D.C. 2011) (noting that the rule

requiring expert testimony to establish a standard of care “has been applied in a wide variety of

cases, ‘even in those that might initially seem to fall within jurors’ common knowledge’”)

(quoting Godfrey, 559 F.3d at 572).

       While the plaintiff proffered two expert witnesses, both of the witnesses are the plaintiff’s

physicians who were named to testify as to the nature of the plaintiff’s injuries and medical

treatment. See ECF Nos. 7-8. No expert witnesses were named to establish a national standard

of care for the maintenance of wheelchair lifts, nor were expert witnesses named who could

testify as to the causal link between the defendant’s alleged negligence and the plaintiff’s

injuries. The plaintiff’s claims therefore cannot survive the defendant’s motion for summary

judgment.

       The plaintiff argues unavailingly that no expert testimony is required in this case and that

“it was [the Kennedy Center’s] failure to properly investigate the source of the occasional

malfunctions (incidents of the same substantive character as the incident on or about August 29,

2008) that gives rise to liability.” Pl.’s Opp’n at 6. Without expert testimony, however, the



                                                13
plaintiff cannot allege that the incident giving rise to the lawsuit was “of the same substantive

character” as the prior stalling of the lift. Compare Tuerr, 616 A.2d at 1257-58 (expert

testimony that two elevator accidents “were related” plus defendant’s failure to comply with

government regulations was sufficient to establish negligence),17 with Dist. of Columbia v.

Billingsley, 667 A.2d 837, 842 (D.C. 1995) (Despite earlier sewer system problems, “[s]uch an

inference [that negligent maintenance was the cause of the flooding of the plaintiff’s basement]

would be highly speculative, particularly considering the immediate abatement of the problem,

the length of the intervals between each of the backups, and the testimony about the various

outside sources from which such debris could enter the sewer system. The jury is not permitted

to engage in such mere speculation or conjecture.”). This allegation of “substantive similarity” is

also unpersuasive because the lift on previous occasions had only stopped mid-route. The

plaintiff has offered no evidence that safety arms had lifted on previous occasions, nor that the

plaintiff had ever fallen from the lift.

         The plaintiff also argues that the “[d]efendant was duty bound to inspect and investigate

reported malfunctions” without presenting any evidence of the defendant’s failure to do so. Pl.’s

Opp’n at 6. The Kennedy Center did in fact “maintain” and “service” the lift on multiple

occasions “when the need arose.” Def.’s Facts ¶ 15 (citing Fernandez Report at 7, 14); see also

Def.’s Facts ¶ 30 (“Kennedy Center technicians would have to be summoned to repair the lift

while [the p]laintiff remained on it.”) (citing Owen Dep. at 56; Sloan Dep. at 22-23, 29).


17
   In Tuerr, the court concluded that “an elevator maintenance contractor owes at least a duty to exercise reasonable
care to those who ride on the elevator.” Tuerr, 616 A.2d at 1259. This holding was premised in part on the elevator
company’s failure to comply with the “particular regulatory or statutory requirement,” namely the company’s failure
to file a prior incident report with the D.C. Department of Consumer and Regulatory Affairs as required by law, that
was “enacted to prevent the type of accident which occurred here,” id. If the particular regulation establishes a
standard of care, then an “unexplained violation of that regulation will render a defendant liable as a matter of law if
a plaintiff can establish that he or she is within the ambit of the statute.” Id. While the plaintiff points to the ADA
as establishing a standard of care, see supra note 16, the plaintiff has not established that the defendant failed to
comply with the ADA.

                                                          14
Without expert testimony as to how the Kennedy Center’s efforts failed to meet the applicable

standard of care for maintenance and care of wheelchair lifts, the plaintiff’s claim for negligence

fails.

         C.       The Plaintiff Still Must Proffer Expert Testimony Even If Res Ipsa Loquitur
                  Were Applicable.

         Finally, the plaintiff cannot sustain her claim and evade the need for expert testimony by

proceeding under a theory of res ipsa loquitur. See Pl.’s Opp’n at 8-9. “[I]t is still the law of the

District of Columbia that the party who seeks to rely on res ipsa loquitur must establish that the

cause of an accident is (1) known, (2) in the defendant’s control, and (3) unlikely to do harm

unless the person in control is negligent.” Londono v. Wash. Metro. Area Transit Auth., 766

F.2d 569, 571 (D.C. Cir. 1985) (quoting Wash. Sheraton Corp. v. Keeter, 239 A.2d 620, 622

(D.C. 1968)) (internal quotation marks omitted); see also Casanova v. Marathon Corp., 570 F.

Supp. 2d 53, 57-58 (D.D.C. 2008) (finding that “[s]ignificantly, the cause of the accident must be

known before we can determine that the causal instrument was within the exclusive control of

the defendant and that the injury was not due to an act of the plaintiff.”) (citation and internal

quotation marks omitted). Thus, res ipsa loquitur “does not come into play in cases where the

cause of the accident is unknown.” Jones v. Safeway Stores, Inc., 314 A.2d 459, 461 (D.C.

1974).18 That is exactly the problem here: the plaintiff maintains that the lift must have

“malfunctioned” in some way to cause her to fall, Pl.’s Opp’n at 7; the defendant argues that the

plaintiff lifted the safety arm and voluntarily propelled her wheelchair over the platform lip to

18
  The plaintiff misconstrues Otis Elevator Co. v. Henderson, 514 A.2d 784 (D.C. 1986), when she states that “if the
specific mechanical defect was known, the [res ipsa loquitur] instruction would be unnecessary.” Pl.’s Opp’n at 9.
In that case, “the right elevator door closed on [the plaintiff] and hit her shoulder” but “did not retract immediately.”
Otis Elevator Co., 514 A.2d at 785. The plaintiff’s expert witness in fact testified that “any one or more of a number
of specific mechanical defects could have led to these results” but could not specify the exact failing. Id. There, the
doctrine of res ipsa loquitur applies because the accident can be ascribed to a particular cause (elevator defect, as
described by the expert witness), but not specifically to a particular mechanical defect. Id. at 785. Here, the causes
of the plaintiff’s wheelchair lift accident are unknown.


                                                          15
get off the lift and subsequently toppled over, see Def.’s Mem. at 15; Fernandez Report at 12-13;

supra note 10. In fact, the plaintiff explicitly calls attention to this deficiency in ascribing

causation: “It should be stated that the exact nature of the malfunction on or about August 29,

2008 is unknown to either party.” Pl.’s Opp’n at 7; supra note 10. No other available witness

saw the incident and the plaintiff does not remember it. See supra notes 8-10; Owen Dep. at 75,

77; Pl.’s Answers ¶ 6. “[W]hen the facts are complicated,” the D.C. Court of Appeals has said

that it “generally require[s] the plaintiff to produce expert testimony to lay the foundation for

invoking res ipsa loquitur.” Pinkney, 970 A.2d at 868 (citing Quin v. George Wash. Univ., 407

A.2d 580, 583 (D.C. 1979)); see also Scott v. James, 731 A.2d 399, 404 (D.C. 1999) (“[Res ipsa

loquitur] may be invoked only where a lay person can infer negligence as a matter of common

knowledge, or where expert opinion is presented that such accidents do not occur in the absence

of negligence.”) (citations and internal quotation marks omitted).19 For this reason, even res ipsa

loquitur does not absolve the plaintiff of her need to proffer expert testimony to succeed on her

negligence claim under D.C. law.

IV.      CONCLUSION

      For the reasons stated above, the defendant’s motion for summary judgment is GRANTED.

An appropriate Order shall accompany this Memorandum Opinion.

DATED: October 22, 2012

                                                                          /s/ Beryl A. Howell
                                                                          BERYL A. HOWELL
                                                                          United States District Judge



19
  The plaintiff’s reliance on McCoy v. Quadrangle Development Corp., 470 A.2d 1256, 1259 (D.C. 1983), for the
proposition that “res ipsa loquitur allows the trier of fact to infer a ‘lack of due care from the mere occurrence of an
accident’” is misplaced. Pl.’s Opp’n at 8 (emphasis in original). In McCoy, the plaintiffs offered evidence
supporting genuine issues of material fact “which should have been submitted to the jury.” McCoy, 470 A.2d at
1259. Here, the plaintiff has offered no such evidence.

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