UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

PEMELIA R. HAYDEN, )
)
Plaintiff, )
)

v, ) Case N0. 12-cv-17 (RJL)
)
)
)

FILED

Defendant. Jb{_ FEB 21 2014
   c'€l'k, U.S. DiSf|'iCi & Bal'ikf|.lpi¢y

(February lé’ 2014) [Dkt. #14] Courts for the Dtstrict of columbia

Pemelia Hayden ("plaintiff") is suing the United States of America ("defendant" or
"the government") under the Federal 'l`ort Claims Act ("FTCA"), 28 U.S.C. §§ l346(b)(l)
and 2671-2680, for injuries that she allegedly sustained when she slipped and fell at
Walter Reed Army Medical Center ("Walter Reed"). See generally Compl. [Dkt. # 1 ].
The government moves to dismiss or alternatively for summary judgment. See Def.’s
M0t. to Dismiss for Failure to Prosecute, or in the Alternative Mot. for Summ. J. ("Mot.
to Dismiss") [Dkt. #14]; Mem. in Supp. of Def.’s Mot. to Dismiss ("Def.’s Mem.") [Dkt.
#]4-]]. Upon consideration of the parties’ pleadings, relevant law, and the entire record
therein, the Motion for Summary Judgment is GRANTED.

BACKGROUND

PlaintifF s allegations are quite simpler On the morning ofFebruary 6, 2007, she

was in the dining hall at Walter Reed. See Compl. 1|‘1] 9-l0. After purchasing a bagel and

cream cheese, she "stopped to get a cup of water from the fountain area at which time she

slipped and fell on water on the f`loor," injuring her right hand and wrist. la', 1]1] lO-l2.
She got back up, looked around, and saw no "wet floor" signs or other warnings. See z'a’.
11 13. Plaintiff seeks damages in the amount of $100,000, of which $70,000 is for
"[d]amage incurred from the personal injury" and $3(),()0() is for "[p]ain [and]
[s]uffering." Icl. at 4.

Plaintiff filed her complaint on January 5, 2012. See Compl. The govemment
answered on May ll, 2012, see Answer [Dkt. #5], and a few weeks later, the parties filed
a meet and confer statement, which called for an exchange of initial disclosures on July
20, 2012 and expert disclosures on January 4 and February 15, 2013, see Joint Rule 16.3
Statement at 5 [Dkt. #6]. All discovery in the case was to close on March 29, 2013. Icl.

Curiously, the docket went quiet for the next several months, during which the
parties should have been conducting discovery according to the schedule set forth in their
meet and confer statement. But on March 25, 2013, defendant moved to compel plaintiff
to produce her initial disclosures~which were already quite late by that point_and to
respond to discovery requests. See Mot. to Compel [Dkt. #8]. Over no objection from
plaintiff, I granted the motion. See Minute Order (Apr. 2l, 2013). Five days later,
plaintiff finally filed two identical documents that purported to be Rule 26(a)( l) and (2)

statements. See Rule 26(a)(l) Initial Disclosures ("Initial Disclosures") [Dkt. ##]O, ll].l

' Attached to both filings were a series of motions in limine from a different case that plaintiffs
counsel was apparently litigating in the Circuit Court for Prince George’s County, Maryland. See
initial Disclosures at 4-21. ()n May 3, plaintiff refiled the same 26(a)(l) and (2) disclosures

2

Plaintiff also filed a Certificate of Compliance [Dkt. #9], which stated that her counsel
had just mailed interrogatory responses to the government.

The govemment now moves for summary judgment on the ground that plaintiff
has not put forward an expert to opine on the standard of care, and without such
testimony, plaintiff cannot prove negligence. Def.’s Mem. at 10-13. Plaintiff concedes
that she has not offered a standard-of-care expert or sought any discovery at all for that
matter. See Local Civil Rule 7(h)(l) ("In determining a motion for summary judgment,
the court may assume that facts identified by the moving party in its statement of material
facts are ad1nitted, unless such a fact is controverted in the statement of genuine issues
filed in opposition to the motion,"); compare Def.’s Statement of l\/Iaterial Facts Not in
Genuine Dispute M ll-l2 [Dkt. #14-2], with Pl.’s Statement of l\/Iaterial Facts in
Genuine Dispute [Dkt. #16-2]. lnstead, she takes the position that "[e]xpert testimony is
not required to prove the standard of care" in this case, Me1n. in Supp. of Pl.’s Opp’n to
Def`.’s Mot. to Dismiss ("Pl.’s Mem.") at 5 [Dkt. #16], because "[t]he complaint on its
face is adequate" and "allows the court and a jury to draw the reasonable inference that

the [d]efendant(s) are liable for the misconduct alleged," ia'. at 3, 4.2

without the unrelated motions. See Rule 26(a) initial Disclosures [Dkt. #13].

2 The govemment also moves to dismiss under Rule 41 (b), claiming that plaintiff has failed to
prosecute this case diligently, as evidenced by her belated and inadequate Rule 26 disclosures
and discovery responses, not to mention her failure to conduct any discovery of her own. See
Def.’s Mem. at 4~8. l need not address this issue because l find that summary judgment is
appropriate in any event. See Fontanez v, U.S. Customs Serv., 293 F. Supp. 2d 5l, 53 n.S
(D.D.C. 2()035).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate "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). "[T]he Court must
draw all justifiable inferences in favor of the nonmoving party and accept the nonmoving
party’s evidence as true." Howard Town Ctr. Developer, LLC v. Howarcz’ Um`v., --- F.
Supp. 2d ----, 2013 WL 6671748, at *9 (D.D.C. Dcc. 19, 2013). At the same time,
however, "‘[a] complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial,"’ and summary
judgment against the nonmoving party is proper. Ia'. at * 10 (quoting Celotex Corp. v.
Cairert, 477 U.S. 317, 323 (l986)); see also Haney v. Marrz`ottlat’l, Inc., No. 05cv250l,
2007 WL 2936087, at *3 (D.D.C. Oct. 9, 2007) ("By pointing to the absence of evidence
proffered by the non-moving party, a moving party may succeed on summary judgment."
(citing Celoiex, 477 U.S. at 322)).

ANALYSIS

The FTCA says that "[t]he United States shall be liable, respecting the provisions
of this title relating to tort claims, in the same manner and to the same extent as a private
individual under like circumstances." 28 U.S.C. § 2674. Plaintiffin this case alleges that
the United States was negligent in failing to post "wet floor" signs or otherwise maintain

a safe fioor around the drinking fountain at Walter Reed. See Pl.’s Mem. at 5-7. "Under

District of Columbia law, which applies under the FTCA, the plaintiff in a negligence
action bears the burden of proof, by a preponderance of the evidence, to demonstrate the
applicable standard of care, deviation from that standard, and the causal relationship
between the deviation and plaintiffs injury." Appletorz v. United States, 180 F. Supp. 2d
177, 182 (D.D.C. 2002) (citing Messirza v. District ofColz/imbia, 663 A.2d 535, 537~38
(D.C. 1995)).

District of Columbia law also says that "‘there is only one standard of care for
persons lawfully upon [a] landowner’s or land occupier’s property, and that is reasonable
care under the circumstances."’ Frazza v. United Sz‘az‘es, 529 F. Supp. 2d 61, 69 (D.D.C.
2008) (quoting Sandoe v. Lefta Assocs., 559 A.2d 732, 742 (D.C. 1989)). lt is plaintiffs
burden "to establish what constitutes ‘reasonab1e care’ under the circumstances." Ial. To

605

meet that burden, plaintiff must offer expert testimony 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."’ Briggs v. Wash. Meiro Area TransitAuth., 481 F.3d 839, 845 (D.C.
Cir. 2007) (quoting District ofColumbz`a v. Arnola’ & Porter, 756 A.2d 427, 433 (D.C.
2000)). Judges on this Court have noted the trend in the District of Columbia towards
requiring expert testimony to establish the standard of care, even in cases that seem to
involve matters of common know1edge. See, e.g., Frazza, 529 F. Supp. 2d at 70; Haney,

2007 WL 2936087, at *4; Griggs v. Wash. Metro. Area TransitAulh., No. 99cvl552,

2002 Wl, 31 174533, at *4 (D.D.C. Sept. 30, 2002) ("[T]he District of Columbia Court of

Appeals has required plaintiffs to present expert testimony regarding standards of care for
relatively common situations."). At least two of my colleagues have followed that trend
in slip-and-fall cases involving floor safety, maintenance, and signage. See Frazza, 529
F. Supp. 2d at 62 (floor of White House on snowy day); Haney, 2007 WL 2936087, at *4
(f1oor of hotel bathtub). Both also granted summary judgment in the defendants’ favor
because the plaintiffs failed to offer expert testimony sufficient to establish the standard
of care, See Frazza, 529 F. Supp. 2d at 68-75; Haney, 2007 WL 2936087, at *3-6.

i will do the same. Plaintiff maintains that "[t]he complaint on its face is
adequate" to survive summary judgment, Pl.’s Mem. at 3; howevcr, it is well established
that "[p]laintiff, in response to [d]efendants’ [summaryjudgment] motion, must ‘ go
beyond the pleadings"’ by citing affidavits, depositions, interrogatory answers, and
admissions, Frazza, 529 F. Supp. 2d at 68 (quoting Celotex, 477 U.S. at 324). She "may
not ‘rely solely on allegations or conclusory stateinents."’ Haney, 2007 WL 2936087, at
*3 (quoting Greene v. Daltorz, 164 F.3d 671, 675 (D.C. Cir. 1999)). Although plaintiffs
brief offers up several vague standards of care that she believes were breached by some
unidentified person(s) at Walter Reed, not one of them is supported by expert authority_

or any authority at all, for that matter, besides the say-so of plaintiff’ s counsel.3 A jury

3 See ia’. at 5 ("Walter Reed’s maintenance staff should always be on notice of water fountains
and food dispensary area for spills and mishandled beverages."); ia’. at 6 ("Premises liability
claims include: Slippery floors, Broken steps, inadequate lighting, An assault by a patron
drinking at a bar or restaurant if obviously intoxicated, Lack of a handrail, Falling obj ects,
Substances or items on the floor and a general Failure to warn."); id. ("Property owners are
required to inspect their property for known and unknown hazards that constitute an

6

would therefore be left to engage in inappropriate speculation about what "reasonable
care" actually required under the circumstances of this case. St. Paul Mercury Ins. Co. v.
Capitol Sprinkler Inspectz`on, Inc., 627 F. Supp. 2d l, ll (D.D.C. 2009) ("It is not the role
of the jury to speculate about what standard of care is required, but rather, to determine
whether or not the required standard of care has been breached based on the credible
evidence submitted by the parties as to what standard of care is required.").

As Frazza and Iilaney show, there is a bit of a science to floor safety. Having
conducted no discovery at all, it is impossible to imagine how plaintiff could establish
even the most foundational facts in this case (like what the Walter Reed floor was made
out of, how it was maintained, and who was responsible for monitoring it on the day in
question), much less provide the jury with a sufficiently specific, authoritative standard of
care. Plaintiff"s failure in this regard is fatal to her case. See, e.g., Griggs, 2002 WL
31 174533, at *5 ("As the plaintiff never argues that he in fact has disclosed or even hired
an expert, the defendants’ arguments raise no disputed issues of fact. Consequently,
because the plaintiff cannot establish the requisite standard of care, the court grants the

defendants’ motions for summary judgment as a matter of law." (footnote omitted)).i

unreasonably dangerous condition and to remedy them or to warn invitees of the dangers."); ia’. at
7 ("it is reasonable to believe that the maintenance and dining area staff new [sic] or should have
known of the regular need to clean and maintain for spills in the dining area and elsewhere within
Walter Reed Medieal Center.").

4 lt bears noting that even if plaintiff could get to a jury, her potential recovery would likely be
limited to just $l,908. 1 O-fthe total damages for which she provided any support in her initial
disclosures. See initial Disclosures at 2; see also Armenian Assembly of Am., Inc. v. Cafezsjian,

7

CONCLUSION
F or the foregoing reasons, the govemment’s Motion for Su1nmary Judgment is

GRANTED. An appropriate order shall accompany this Memorandum Opinion.

 

746 F_ supp. 2d 55, 71 (D.D.C. 2010).

