United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 18, 2012                   Decided July 5, 2013

                         No. 11-7158

                MARGARETTA SIBERT-DEAN,
                      APPELLEE

                               v.

 WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
                  APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:08-cv-02145)


     Gerard J. Stief argued the cause for appellant. With him on
the briefs were Carol B. O’Keeffe and Mark F. Sullivan.

     Jacob M. Lebowitz argued the cause for appellee. With him
on the brief was Peter C. Grenier.

   Before: GARLAND, Chief Judge, and TATEL and
KAVANAUGH, Circuit Judges.

    Opinion for the Court filed by Chief Judge GARLAND.

     GARLAND, Chief Judge: Margaretta Sibert-Dean was
injured when the Washington Metropolitan Area Transit
Authority (WMATA) bus on which she was riding struck a car.
                                2

Evidence at trial showed that the bus hit the car because the
driver was distracted by the attentions of a group of teenage
girls. On appeal, WMATA insists that the district court erred in
instructing the jury that it must treat the driver’s violations of
two District of Columbia traffic regulations as negligence per se,
rather than as evidence of negligence. Because that distinction
is without a material difference in this case, we affirm the
judgment of the district court.

                                 I

      On February 14, 2006, Sibert-Dean was riding a WMATA
bus in Northwest Washington, D.C. As it pulled away from a
stop, the bus collided with a car that was making a turn in front
of it. Sibert-Dean was thrown from her seat and injured. In her
complaint, she alleged that the accident was the result of the
driver’s failure to pay attention to the road as he pulled away
from the bus stop.

      At trial, Sibert-Dean presented evidence that the bus driver,
Dante Dinkins, failed to see that a car was turning in front of
him because he was distracted by a group of teenage girls who
were near the bus stop. Patricia Shelton, another bus passenger,
testified that the teens had been “[l]aughing, talking, . . . horse
playing and carrying on.” 9/22/11 (am) Tr. 13. She said that the
girls started “hollering at the driver,” “laughing,” and “[a]cting
flirty” with him. Id. at 13-14, 18. Dinkins turned around and
looked back at them, smiling, and then continued to watch them
“jumping up and down” as he pulled the bus away from the stop.
Id. at 13, 17-18.

     Sibert-Dean testified that she and other passengers, seeing
that a car was turning in front of the bus as the bus pulled into
traffic, screamed at Dinkins in an effort to forestall the
impending collision. Dinkins attempted a defensive driving
                                3

maneuver, at which point Sibert-Dean was ejected from her seat
and into a steel handrail, which knocked her unconscious. The
bus and the car then collided. Sibert-Dean was taken directly to
the hospital, where she was treated for a variety of injuries.

     Before the jury was instructed, the parties and the court
spent a significant amount of time discussing how the jury
should be told to treat a number of District of Columbia traffic
regulations. These included 18 D.C.M.R. § 2206.1 and 18
D.C.M.R. § 2213.4. The first 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 second
states that “[a]n operator shall, when operating a vehicle, give
full time and attention to the operation of the vehicle.” The
question at issue was whether to tell the jury that a violation of
one or more of the relevant traffic regulations constituted
negligence per se, or only evidence of negligence. After some
debate and consideration of District of Columbia case law, the
court decided to give a negligence per se instruction. 9/28/11
(pm) Tr. 13.

     In its instructions to the jury, the court explained that
WMATA had a duty to use ordinary care in carrying passengers,
and that this meant its bus driver had a duty to act as a
reasonable person would under the circumstances. If the driver
failed to live up to that duty, the driver was negligent and
WMATA was liable. Id. at 36. The court also read the text of
several D.C. traffic regulations, including sections 2206.1 and
2213.4, and said that, if the jury found that its bus driver
violated any of them, it must find WMATA negligent. Id. at 37.
The court went on to explain that, if the jury found WMATA
negligent, it must then decide whether that negligence was a
proximate cause of Sibert-Dean’s injuries. Id. at 40. The jury
                                 4

returned a verdict in Sibert-Dean’s favor, requiring WMATA to
pay $337,500 in damages. Order of Judgment 2 (Dec. 4, 2011).1

     In its motion for a new trial, WMATA argued that the
district court should have instructed the jury to consider
violations of sections 2206.1 and 2213.4 only as evidence of
negligence, not as negligence per se. The court disagreed.
Sibert-Dean v. WMATA, 826 F. Supp. 2d 266, 268 (D.D.C.
2011). It held that the regulations in question were sufficiently
specific to warrant a negligence per se instruction. It further
held that, even if it had erred in giving a negligence per se rather
than an evidence-of-negligence instruction, the error was
harmless. It noted that the jury was presented with “significant
evidence” supporting a finding that WMATA’s bus driver was
negligent, and that in light of this evidence, the jury “most likely
would have reached the same verdict” even if it had been
instructed to treat violations of sections 2206.1 and 2213.4 as
evidence of negligence. Id. at 278. After denying WMATA’s
motion for a new trial, the district court entered judgment
against WMATA. Order of Judgment 2 (Dec. 4, 2011).

                                 II

     Under District of Columbia law, the default rule for the
application of the negligence per se doctrine is as follows:
“[W]here a particular statutory or regulatory standard is enacted
to . . . prevent the type of accident that occurred[,] . . . [an]
unexplained violation of that standard renders the defendant
negligent as a matter of law.” Joy v. Bell Helicopter Textron,
Inc., 999 F.2d 549, 557 (D.C. Cir. 1993) (quoting Ceco Corp. v.


    1
     WMATA had filed a third-party complaint against Norma Jean
Woodson, the driver of the other vehicle. The jury found that both
WMATA and Woodson were negligent, and that the negligence of
each was a cause of the accident. Order of Judgment 1 (Dec. 4, 2011).
                                  5

Coleman, 441 A.2d 940, 945 (D.C. 1982)) (emphasis removed);
see Burns v. WMATA, 114 F.3d 219, 223 (D.C. Cir. 1997);
Childs v. Purll, 882 A.2d 227, 235 (D.C. 2005).

     WMATA does not dispute that the general conditions for
the default rule were met here.2 Instead, it relies on an exception
to that rule. Under that exception, “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 Bell Helicopter, 999 F.2d at 558). WMATA argues
that the exception applies here because sections 2206.1 and
2213.4 are “very general regulations which merely restate[]
common law standards.” WMATA Br. 25.



     2
      In its reply brief, WMATA suggested that the “sudden
emergency” of a car pulling in front of the bus provided an
exculpatory explanation for Dinkins’ alleged violations of the
regulations in question. Reply Br. 11; see Ceco Corp., 441 A.2d at
945 (“If 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, the jury is properly
instructed . . . that the violation is evidence of negligence, but not
negligence as a matter of law.”). The brief left unexplained, however,
why another driver’s decision to suddenly pull in front of the bus
would excuse the bus driver’s failure to pay full attention to the
operation of his vehicle, which would violate 18 D.C.M.R. § 2213.4.
As for 18 D.C.M.R. § 2206.1, we do not see why the suddenness of
the other driver’s behavior would excuse Dinkins’ decision to leave
the bus stop if, at the time he started the bus, it was unreasonably
unsafe to do so. In any event, these arguments are not properly before
us because WMATA did not raise them until its reply brief. Altman
v. SEC, 666 F.3d 1322, 1329 (D.C. Cir. 2011); Novak v. Capital
Mgmt. & Dev. Corp., 570 F.3d 305, 311 n.3 (D.C. Cir. 2009).
                                 6

     We review an alleged failure to submit a proper jury
instruction de novo. Czekalski v. LaHood, 589 F.3d 449, 453
(D.C. Cir. 2009). But we also apply the harmless error rule,
pursuant to which “the court must disregard all errors and
defects that do not affect any party’s substantial rights.” FED. R.
CIV. P. 61; see Czekalski, 589 F.3d at 453. This “means that the
error must have been prejudicial: It must have affected the
outcome of the district court proceedings.” Muldrow ex rel.
Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 168 (D.C.
Cir. 2007) (quoting United States v. Olano, 507 U.S. 725, 734
(1993)). We first address WMATA’s argument that the district
court erred, and then turn to its argument that the alleged error
was not harmless.3

                                 A

     Section 2213.4 requires that “[a]n operator shall, when
operating a vehicle, give full time and attention to the operation
of the vehicle.” 18 D.C.M.R. § 2213.4. WMATA asserts that
this “simply is another way of saying that the bus operator must
exercise ‘due care.’” WMATA Br. 22 (quoting Bell Helicopter,
999 F.2d at 558) (internal alteration omitted). Thus, in its view,
a negligence per se instruction is inappropriate in light of the
exception for statutes that merely restate common law standards.


    3
      Sibert-Dean contends that we should review only for plain error
because WMATA failed to state distinctly the grounds for its
objection before the jury was instructed, and because it invited any
error by originally proposing negligence per se instructions and then
“wait[ing] until the last minute to change its mind and object.”
Sibert-Dean Br. 16; see FED. R. CIV. P. 51(b), (c), (d)(2); Long v.
Howard Univ., 550 F.3d 21, 25 (D.C. Cir. 2008); United States v.
Kanu, 695 F.3d 74, 80 (D.C. Cir. 2012). We need not address that
contention because we affirm even under the harmless error standard,
which is more favorable to WMATA. See Muldrow, 493 F.3d at 168.
                                 7

     On its face, section 2213.4 does not merely restate the basic
common law duty of reasonable care. As the district court
explained, it requires drivers not only to give “reasonable” or
“due” time and attention to the operation of their vehicles, but
to give their “full” time and attention. See Sibert-Dean, 826 F.
Supp. 2d at 275. It is true that the presence of terms like
“reasonable” or “due” is not required for the exception to the
negligence per se rule to apply. The key question is not whether
the regulation contains certain words or phrases, but whether it
“allow[s a factfinder] to determine whether [it] has been violated
without resorting to a common law reasonable care analysis.”
Chadbourne v. Kappaz, 779 A.2d 293, 297 (D.C. 2001); see id.
296-97. In Chadbourne, the court found the exception
applicable to a law stating that “[n]o owner of an animal shall
allow the animal to go at large,” because the phrase “allow the
animal to go at large” implied either intentionally letting an
animal run free or negligently failing to prevent it from doing
so. Id.

     But we do not think that section 2213.4 directs such an
implicit common law reasonable care analysis. It is one thing to
ask whether a driver has given reasonable attention to the task
at hand. It is quite another to ask whether a driver has given full
attention to his task. One can readily imagine a driver meeting
the former standard but not the latter, and it is the latter that the
regulation imposes. We therefore conclude that the district court
did not err in giving a negligence per se instruction with respect
to 18 D.C.M.R. § 2213.4.

    The second regulation at issue, section 2206.1, is a different
matter. This 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.” 18
D.C.M.R. § 2206.1. Here the term “reasonable” is present. The
important point is not just the presence of the word, however,
                                8

but how it affects the operation of the regulation as a practical
matter. It is not possible to tell whether a person has violated
the standard set by this regulation without evaluating his or her
actions against a common sense (and common law) baseline of
reasonable behavior. The regulation does not forbid starting a
vehicle unless it is fully safe to do so. It forbids starting a
vehicle unless it is reasonably safe to do so. In that respect,
section 2206.1 closely resembles the aircraft regulations in Bell
Helicopter. There the court, applying District of Columbia law,
found that a negligence per se instruction was inappropriate with
respect to regulations forbidding “careless or reckless” piloting,
or flying at an altitude too low to allow emergency landing
without “undue hazard.” 999 F.2d at 558-59.

     Sibert-Dean maintains that section 2206.1 sets forth a
specific standard of conduct because it applies to a very
particular set of circumstances (namely, starting a vehicle). But
so did the altitude regulation in Bell Helicopter and the leash
law in Chadbourne. The question is not whether the regulation
deals with a specific set of circumstances, but what sort of
behavior it prescribes for the circumstances that it governs. If
the regulation provides specific directions that go beyond a mere
admonition of reasonable care, the negligence per se instruction
should be given. Cf. Burns, 114 F.3d at 223 (holding that the
jury should have been instructed that exceeding the 25 mile per
hour speed limit, if proven, constituted negligence per se). But
if the regulation does not provide specific directions for what to
do in the circumstances, so that determining whether a person
has violated the regulation boils down to a common law
reasonableness inquiry, a negligence per se instruction is
unwarranted. See Thoma v. Kettler Bros., 632 A.2d 725, 728 n.8
(D.C. 1993) (holding that a negligence per se instruction would
have been improper because the regulations at issue did “not
differ significantly in their particulars from the common law
standard of reasonable care in the circumstances”). Because
                                  9

section 2206.1 says nothing more than that the usual common
law rule applies, it was error to give a negligence per se
instruction.4

                                  B

     The error with respect to the section 2206.1 instruction
warrants reversal only if it was not harmless; that is, only if it
“affected the outcome of the district court proceedings.”
Muldrow, 493 F.3d at 168 (quoting Olano, 507 U.S. at 734).
The question before us, then, is whether giving a negligence per
se instruction with respect to section 2206.1 affected the
outcome of the trial.

     WMATA argues that “the prejudice created by giving the
negligence per se instruction” in this case “is clear.” WMATA
Br. 25. As WMATA puts it, “[t]he improper negligence per se
instruction mandated that the jury find WMATA negligent if the
jury determined that . . . very general regulations which merely
restated common law standards” were violated. Id. (emphasis
added). Unfortunately for WMATA, the very structure of its
argument traps it between Scylla and Charybdis. In order to

     4
       In parts of her brief, Sibert-Dean appears to argue that the
exception to the negligence per se rule for regulations that merely
repeat the common law duty of care should never apply to automobile
traffic regulations. See, e.g., Sibert-Dean Br. 21-22. In support, she
notes that no District of Columbia case has ever applied the exception
in that context. She concedes, however, that no District of Columbia
case has ever held that the exception is inapplicable to automobile
traffic regulations. Oral Arg. Recording at 18:50-19:10. More
important, this court has itself applied the exception to regulations
governing the operation of another kind of vehicle (a helicopter). See
Bell Helicopter, 999 F.2d at 557-59. And Sibert-Dean proffers no
reason why it should be inapplicable to vehicles that cannot leave the
ground.
                                10

prevail, WMATA must show both that there was error and that
the error was not harmless. Yet, if its argument for error is
sound, it appears certain that the error was harmless.

     The premise of WMATA’s argument for error is that
section 2206.1 “merely restate[s]” the common law standard
itself. Reply Br. 8; see id. at 6 (arguing that “the challenged
regulations . . . only reiterate the common law duty of
reasonable care”). Indeed, the reason that many jurisdictions
decline to apply the doctrine of negligence per se to statutes that
simply duplicate the common law duty is that in such
circumstances the negligence per se rule is a needless analytic
fifth wheel. As the Restatement explains:

         To find that an actor has violated such a statute, the
         jury would also need to find that the actor has behaved
         negligently. In such situations, the doctrine of
         negligence per se is largely superfluous in ascertaining
         the actor’s liability. In cases of this sort, courts . . .
         frequently . . . reject negligence per se, recognizing its
         redundancy and appreciating that it does not serve its
         typical function of simplifying or providing structure
         to the rendering of negligence determinations.

RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL              AND
EMOTIONAL HARM § 14 cmt. e (2010).

     But if the negligence per se instruction was erroneous only
because it was redundant, then the error cannot be prejudicial.
If the regulation merely restated the common law duty of due
care, a factfinder following the court’s instruction could not
have found that WMATA violated the regulation without also
concluding that it violated that common law duty. See
Chadbourne, 779 A.2d at 297. And if the jury made the latter
                                   11

finding as required, the erroneous jury instruction could not have
affected the outcome of the case.

      Because giving a negligence per se instruction with respect
to a statute or regulation that merely restates the common law
standard is redundant rather than harmful, it is unsurprising that
WMATA cannot cite a single case in which any court in the
District of Columbia has reversed a trial court for erroneously
doing so. Oral Arg. Recording, 5:06-7:00; 25:28-25:38
(acknowledgment by WMATA counsel). This case will not be
the first.5

                                   III

     For the foregoing reasons, the judgment of the district court
is

                                                              Affirmed.




     5
      There may be circumstances in which giving a negligence per se
instruction is harmful, not because of the instruction itself, but because
of the ways in which negligence per se interacts with other tort
doctrines. WMATA argues, for example, that statutory negligence per
se can sometimes limit the availability of defenses like contributory
negligence. WMATA Reply Br. 12-13. No such interactions have
been suggested in this case.
