                               District of Columbia
                                Court of Appeals

No. 15-CV-711                                                          APR 14 2016

ATIYA K. REEVES,
                                                 Appellant,

     v.                                                        CAB-810-14


WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
                               Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                   Civil Division


       BEFORE: BLACKBURNE-RIGSBY and EASTERLY, Associate Judges; and REID,
Senior Judge.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

              ORDERED and ADJUDGED that the orders of the trial court are vacated,
and the case is remanded for further proceedings.

                                          For the Court:




Dated: April 14, 2016.

Opinion by Senior Judge Inez Smith Reid.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.


             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 15-CV-711                    4/14/16

                         ATIYA K. REEVES, APPELLANT,

                                       V.

      WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CAB-810-14)

                    (Hon. Herbert B. Dixon, Jr., Trial Judge)

(Argued March 10, 2016                                    Decided April 14, 2016)

      Patrick G. Senftle, with whom John H. Schroth was on the brief, for
appellant.

       Michael K. Guss, Associate General Counsel, WMATA, with whom Gerard
J. Stief, Chief Counsel, Appeals & Special Litigation, and Patricia B. Donkor,
Assistant General Counsel, were on the brief, for appellee.

      Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and REID,
Senior Judge.

      REID, Senior Judge: In this personal injury, slip and fall case appellant,

Atiya K. Reeves, appeals the trial court‟s order granting summary judgment and

the court‟s order denying her motion for reconsideration. She claims, in essence,
                                         2

that the trial court erred by ruling in favor of appellee, Washington Metropolitan

Area Transit Authority (“WMATA”), as a matter of law with respect to her claim

of negligence. For the reasons stated below, we vacate the orders of the trial court

and remand this case for further proceedings.



                            FACTUAL SUMMARY



      The record reveals that on February 24, 2011, at around 5:30 pm, Ms.

Reeves slipped and fell on the floor just inside the pay gates at the Archives-Navy

Memorial-Penn Quarter Metro station (the “Archives Metro station”). She filed a

negligence complaint against WMATA on February 12, 2014, alleging, inter alia,

that her “fall was the direct and proximate result of the unsafe and hazardous

condition of the Metrorail station‟s floor tiles,” and that WMATA‟s failure “to

warn or advise [her] of the unsafe and hazardous condition” was the proximate

cause of her fall and resulting injuries. Following discovery, WMATA filed a

motion for summary judgment, arguing (1) “there is no evidence of an

unreasonably dangerous condition,” and (2) “no reasonable jury could find in favor

of [Ms. Reeves] under a failure to warn theory.”



      Attached to WMATA‟s motion were excerpts from the deposition testimony
                                          3

of Ms. Reeves‟ engineering expert, Dr. Gregory Harrison, excerpts from Ms.

Reeves‟ deposition testimony, and a statement of undisputed facts.          WMATA

asserted that Dr. Harrison “rejected any claim that warning signs could have led to

a different outcome here.”1 However, Dr. Harrison also testified that as floors age,

they “lose their slip resistance characteristics.” He explained that at a minimum,

for a floor surface to provide adequate slip resistance for safety purposes, the

coefficient of friction2 of the floor surface should exceed .45. Dr. Harrison‟s

expert opinion, derived from testing and his review of the record in this case, was

that the coefficient of friction for the Archives Metro station floor surface around

where Ms. Reeves fell was “well below .5” within “a number range of .3 to .35.”

In laymen‟s terms, he described the station floor‟s “dry condition [as] anything but

slip resistant[,] and when wet it‟s treacherous.”3


      1
         Dr. Harrison was asked whether he had “an opinion about whether or not
there should have been warning signs,” and he replied: “Well, it‟s prevailing
practice that when it‟s raining warning signs are put out to remind pedestrians. My
professional opinion on that is that I call it similar to putting perfume over body
odor. It doesn‟t mitigate. If you have slippery floors you have slippery floors.”
      2
         Roughly speaking, the coefficient of friction of a surface is a number that
indicates how slippery that surface is. The smaller the coefficient of friction is for
a given surface, the more slippery that surface is.
      3
          Indeed, Dr. Harrison pointed out that the floors in Metro stations are
generally “excessively worn and smooth to the point that they would not be slip
resistant dry,” and that the floors “would be viewed as non-slip resistant or slippery
and then when wet they would be approximating a condition of ice . . . .” He
                                                                       (continued…)
                                            4

      Ms. Reeves filed an opposition to WMATA‟s motion, as well as a motion

for reconsideration after the trial court granted WMATA‟s motion for summary

judgment. Attached to Ms. Reeves‟ opposition memorandum was a “statement of

material facts for which there is a genuine issue,” excerpts from her deposition, her

affidavit, the affidavit of Dr. Harrison, and a television news report. She attached

to her motion for reconsideration excerpts from her deposition, her supplemental

affidavit, excerpts from the deposition testimony of WMATA‟s station manager at

the time of the incident (Lawrence D. Walker), and WMATA‟s answers to her

interrogatories.



      During her deposition, Ms. Reeves testified that on the day of her fall, she

took her umbrella with her to work because it was “[a] rainy day.” 4                 She


 (…continued)
mentioned that “six stations . . . have been modified” with new floor tiles, but in an
affidavit attached to Ms. Reeves‟ opposition to WMATA‟s summary judgment
motion, he clarified that the Archives Metro station was not one of the stations so
modified.
      4
         Ms. Reeves testified in her deposition that she did not remember whether
it was raining in the morning when she went to work, nor did she “stare outside
[her office] window during [her] workday . . . to see what the weather was like.”
However, in an affidavit she attached to her opposition memorandum, she stated,
“By the time[] I arrived at work that morning it was raining and continued to rain
throughout the day. When I left work at 5:30 p.m., it was still raining.” WMATA
does not dispute this fact; to the contrary, it states in its brief that “[i]t was raining
the entire day.”
                                           5

remembered that when she left work and walked to the Archives Metro station at

around 5:30 pm there was “a light rain” that required her and others around her to

use their umbrellas. She took an elevator to get into the station, exiting at the

mezzanine level. After getting out of the elevator, she walked towards the fare

gates, and then swiped her “Smart Card” to go through. While walking, she was

looking “[s]traight ahead” and she was not walking with anyone, listening to

music, or using her phone in any other way. She did not see any caution signs in

the station, nor did she notice whether the floor was wet or dry.5 After she took a

few steps in the paid area, she fell down.6 It was only at that point that she

“noticed traces of water.” Ms. Reeves further declared in her affidavit that the

“traces of water . . . formed trails or lines that looked like it had been tracked in on

peoples‟ feet as they entered the Archives metro station from the outside.” She

“also noticed that [her] overcoat was significantly wet in the area of [her] buttocks”

after her fall.


       5
         She did note, however, in her supplemental affidavit attached to her
motion for reconsideration that a “stream of commuters” surrounded her as she
approached the fare gates, obstructing her view.
       6
           She described her fall in the following exchange:

               Q: And how did you fall?
               A: When I fell -- so I was walking, then my right foot
               turned inwards towards my left leg, then I fell on my
               bottom, I heard a snap, and that‟s when I yelled[.]
                                         6

      The news report by the local NBC affiliate indicated that one of WMATA‟s

board members (the then-current mayor of Alexandria, Bill Euille) fell at a metro

station several months prior to Ms. Reeves‟ fall. The end of the report stated that

“Metro has already looked at improving the tile floors at its 86 stations,” and

according to the report, Mr. Euille remarked that “it may be time to revisit the

issue.”   In his affidavit Dr. Harrison opined, “to a reasonable degree of

professional and engineering certainty,” that since WMATA knew “that the quarry

tiles on the floors of the station were slippery when wet, WMATA had a duty of

reasonable care to properly warn or advise pedestrians of the unsafe and hazardous

condition of the wet floor tiles,” and that WMATA had breached that duty by

failing to warn when it “peculiarly knew, or should have known, in the exercise

o[f] reasonable care, that the floor tiles would be wet on February 24, 2011 when it

had been raining all day and pedestrians would track water into the Archives

[S]tation.”



      In granting WMATA‟s motion for summary judgment, the trial court cited

Washington Metro. Area Transit Auth. v. Barksdale-Showell, 965 A.2d 16, 24-25

(D.C. 2009), and stated in part, “[T]his member of the court cannot conclude that

the water tracked into a metro station by its patrons (including the plaintiff) on a

rainy day during rush hour constitutes a hidden or otherwise discrete danger that
                                          7

was well known to only the defendant, and not the plaintiff.” The court repeated

its above-mentioned sentence in denying Ms. Reeves‟ motion for reconsideration,

but did not repeat the citation to Barksdale-Showell. The trial court also concluded

that WMATA had no duty to warn because Ms. Reeves‟ “failure to appreciate her

surroundings under the[] circumstances does not require Defendant WMATA to

warn [Ms. Reeves] about an obvious risk.” Ms. Reeves noticed an appeal.



                 THE PARTIES’ APPELLATE ARGUMENTS



      In this appeal, Ms. Reeves argues that the trial court erred in granting

summary judgment because there was evidence in the record indicating that the

wet station floor posed a danger that was not “open and obvious” to Ms. Reeves,

that the danger was not equally well known to both parties, that WMATA had

constructive notice of the danger, and that WMATA‟s failure to warn was the

proximate cause of her fall.7 WMATA contends, by contrast, that the trial court

correctly found that WMATA had no duty to warn Ms. Reeves of the wet station

floor because the wet station floor was not a dangerous condition, and because in

      7
         Ms. Reeves also devotes a portion of her brief to arguing that she was not
contributorily negligent. It does not appear that the trial court relied on this ground
in granting WMATA summary judgment, and WMATA does not explicitly rely on
the contributory negligence doctrine in advocating affirmance of the trial court‟s
order. As a result, we do not address this issue.
                                         8

any event Ms. Reeves had knowledge equal to if not greater than WMATA‟s

knowledge of the condition.



                                    ANALYSIS



      Standard of Review and Legal Principles



      We review the trial court‟s grant of summary judgment de novo, applying

the same standard as the trial court. See Bruno v. Western Union Fin. Servs., Inc.,

973 A.2d 713, 717 (D.C. 2009) (per curiam). We consider whether “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.” Id. (quoting Super. Ct.

Civ. R. 56 (c)). The moving party bears the burden of showing there is no genuine

issue of material fact, and we resolve all doubts in favor of the non-moving party.

Id. All inferences to be drawn from the undisputed facts are also drawn in favor of

the non-moving party. Id. “[M]ere conclusory allegations by the non-moving

party are legally insufficient to avoid the entry of summary judgment.” Little v.

District of Columbia Water & Sewer Auth., 91 A.3d 1020, 1025 (D.C. 2014)

(citation omitted).
                                         9

      “To prove a prima facie case of negligence, the plaintiff must prove that the

defendant owed a duty, and that breach of that duty proximately caused the

plaintiff‟s injuries.” Barksdale-Showell, supra, 965 A.2d at 24 (citation omitted).

“Questions of causation are ordinarily issues of fact for the jury.” Tolu v. Ayodeji,

945 A.2d 596, 604 n.6 (D.C. 2008) (quoting Thompson v. Shoe World, Inc., 569

A.2d 187, 190 (D.C. 1990)).



      In premises liability cases involving invitees, “[a] shopkeeper has a duty to

warn only when there is time to do so.” Ellis v. Safeway Stores, Inc., 410 A.2d

1381, 1383 (D.C. 1979). Moreover, “there is no duty to warn when a danger is as

well known to the plaintiff as it is to the defendant, [but] if a certain danger is

peculiarly foreseeable to the defendant but not the plaintiff, there is a duty to

warn.” Barksdale-Showell, supra, 965 A.2d at 24-25. Further, “[k]nowledge of a

dangerous condition „implies not only that the condition is recognized, but also that

the chance of harm and the gravity of the threatened harm are appreciated.‟” Id. at

25 (quoting Restatement (Second) of Torts § 342 cmt. a (Am. Law Inst. 1965)).



      Discussion



      In reaching its conclusion on the motions for summary judgment and
                                         10

reconsideration, we believe that the trial court misconstrued part of our decision in

Barksdale-Showell and may have overlooked some of the evidence attached to Ms.

Reeves‟ opposition to the motion for summary judgment and to her motion for

reconsideration. The trial court concluded that, based on the undisputed facts,

WMATA had no duty to warn Ms. Reeves about the “obvious risk” posed by the

wet floor in the Archives Metro station and was thus entitled to judgment as a

matter of law on Ms. Reeves‟ negligence claim. In denying Ms. Reeves‟ motion

for reconsideration, the trial court also declared that “the mere fact that some water

is deposited on the floor of . . . WMATA‟s station tracked-in by patrons or their

clothing or umbrellas during a rainstorm, without more, does not create a

dangerous condition” and further stated that even if tracked-in water on the station

floor created a dangerous condition, Ms. Reeves failed to show that WMATA was

on constructive notice of the condition because she “failed to present any evidence

regarding 1) how long this particular dangerous condition near . . . WMATA‟s fare

gates existed or 2) if [WMATA] through its agents was placed on notice of this

condition before [Ms. Reeves] slipped and fell.”



      Whether WMATA had a duty to warn Ms. Reeves in this case turns on (1)

whether a wet metro station floor constitutes a dangerous condition, (2) whether

the danger faced by Ms. Reeves in traversing the wet floor was equally well known
                                          11

to both parties or instead was “peculiarly foreseeable” only to WMATA, and (3)

whether WMATA had sufficient notice of the condition so as to give it an

opportunity to warn Ms. Reeves. The second question is significant in this case.



      First, we conclude that the trial court erred in declaring that a station floor of

wet and slippery tiles is not a dangerous condition. See Harris v. H.G. Smithy Co.,

Inc., 429 F.2d 744, 745 (D.C. Cir. 1970) (“[E]vidence of a substantial period of

rain is sufficient to give a landlord constructive notice of the foreseeable hazards

that may result from that rain, including the risk that water will be tracked into an

apartment lobby and the floor will become slippery”) (citation omitted).            Dr.

Harrison‟s affidavit and his deposition testimony that metro station floors in

general are “excessively worn and smooth” to the point that they can be as slippery

as ice when wet, combined with his specific testimony that the Archives Metro

station floor lacked slip resistance even when dry and became “treacherous” when

wet reveals evidence sufficient to present a question of fact, and hence, a jury

question.



      Second, we conclude that the danger faced by Ms. Reeves in traversing the

wet floor was not equally well known to both parties and instead was peculiarly

foreseeable only to WMATA. Our decision in Barksdale-Showell distinguishes
                                         12

between the question as to whether Ms. Barksdale-Showell should have been

“aware of the open and obvious condition of the snow and ice on the ground,”

requiring her to “exercise reasonable care in her journey . . . to the Anacostia

Metrorail station,” and the question as to whether “the condition of the escalators

was open and obvious and known to Ms. Barksdale-Showell as it was to

WMATA.” Barksdale-Showell, supra, 965 A.2d at 25. Thus, in answering the

second question, we must consider, and the trial court should consider, not only

whether Ms. Reeves knew or should have known that the floor was wet, but also

whether she knew or should have known the chance of harm and the gravity of the

threatened harm due to the wet and slippery floor tiles. See id. at 25 (“The

Restatement explains . . . that „obvious‟ means that „both the condition and the risk

are apparent to and would be recognized by a reasonable [person], in the position

of the visitor, exercising ordinary perception, intelligence, and judgment.‟”

(quoting Restatement (Second) of Torts § 343A cmt. b (Am. Law Inst. 1965))).



      In addition, there was other evidence regarding WMATA‟s awareness of the

dangerous condition of the wet floors. This evidence indicated that this case could

not be resolved as a matter of law at the summary judgment stage of the litigation.

Lawrence Walker, a station manager for WMATA from 2004 to 2011, was on duty

at the Archives Metro station on February 24, 2011. He was asked during his
                                          13

deposition, “[W]ere you aware, back in February 2011, that the tiles in the paid

area of the mezzanine could become slippery when they were wet?” He replied,

“Yes.” He was also asked, “[W]ould you agree that if you know that the floor tiles

are wet, then you need to put up a warning for the passengers, right?” He

responded, “Correct.” Furthermore, Dr. Harrison‟s deposition testimony and his

affidavit undermine the trial court‟s finding as a matter of law that the risk posed

by the Archives Metro station‟s wet floor was obvious to Ms. Reeves and thus that

WMATA had no duty to warn Ms. Reeves about that risk. Even if we agree with

the trial court that floors, particularly those made of tile, generally pose “an

obvious risk” when wet, Ms. Reeves presented evidence that the danger or

hazardous risk posed by the particular wet floor at issue here was not equally

obvious or foreseeable to both Ms. Reeves and WMATA.8 See Barksdale-Showell,

supra, 965 A.2d at 25. The risk in this case is more appropriately labeled as one

      8
         Even assuming that Ms. Reeves knew that the station floor was wet and
potentially hazardous, Dr. Harrison‟s testimony suggests that the risk posed by the
wet station floor was particularly great in light of the low coefficient of friction of
the floor‟s surface stemming from many feet wearing smooth the floor‟s surface
over the years. A layperson can reasonably expect a wet tile floor to pose some
risk of danger, but it is difficult to conceive that a layperson “exercising ordinary
perception, intelligence, and judgment” could understand the extent of the hazard
posed by a metro station floor with a coefficient of friction significantly below the
minimum coefficient necessary for safety purposes. Moreover, a WMATA station
manager, who watches people navigating slippery station floors all year long,
necessarily has a much better understanding of how likely people are to slip on a
slippery floor.
                                         14

“peculiarly foreseeable” to WMATA, which owns and operates all metro stations

and which thus was in a better position to know just how worn down and slippery

the floors in those stations are.9 See id. (finding that Ms. Barksdale-Showell was

not in a position equal to WMATA when it came to gauging the risk posed by a

wet WMATA escalator and that “[h]er appreciation of the condition (the wet

ground) was different than and distinct from her lack of appreciation of the

unreasonably dangerous hazard risk that the condition posed on the escalator”).



      Third, Ms. Reeves‟ deposition testimony and affidavits constitute evidence

that WMATA had notice that the Archives Metro station‟s floor was wet on the

day of the incident. WMATA does not dispute Ms. Reeves‟ sworn statement that

it rained from the time she reached her job in the morning until 5:30 p.m. when she

left work to go home. Ms. Reeves further stated in her affidavit that the water on

the floor “formed trails or lines that looked like it had been tracked in on peoples‟

feet.” This evidence is sufficient to give rise to the inference that WMATA was on

constructive notice of the fact that the Archives Metro station floor was wet, and

this evidence is properly viewed at the summary judgment stage as presenting a

question of fact for the jury, contrary to the conclusion of the trial court. See

      9
       The reported incident involving one of WMATA‟s board members falling
in a metro station several months before Ms. Reeves‟ fall is emblematic of
WMATA‟s unique position in this regard.
                                          15

Harris, supra, 429 F.2d at 745 (“[E]vidence of a substantial period of rain is

sufficient to give a landlord constructive notice of the foreseeable hazards that may

result from that rain, including the risk that water will be tracked into an apartment

lobby and the floor will become slippery.”).



      In sum, given the evidence attached to the summary judgment pleadings,

including that attached to Ms. Reeves‟ opposition and her motion for

reconsideration, we disagree with the trial court‟s statement that “the court cannot

conclude that the water tracked into a metro station by its patrons . . . on a rainy

day during rush hour constitutes a hidden or otherwise discrete danger that was

well known to only the [WMATA], and not [Ms. Reeves].”10 Dr. Harrison‟s



      10
             WMATA argues in the alternative that summary judgment was
appropriate because the undisputed facts show that even if it had a duty to warn
Ms. Reeves of the wet floor condition, that condition was not the proximate cause
of her fall. The proper question is whether WMATA‟s failure to warn proximately
caused Ms. Reeves‟ fall. On this record, we cannot agree that a jury would need to
speculate regarding causation, as WMATA contends. This case is distinguishable
from Wilson v. Washington Metro. Area Transit Auth., on which WMATA relies.
There, unlike Ms. Reeves in this case, plaintiff presented a “bare statement . . . that
she slipped and fell, and noticed dry sticky soda on her hand after the fall.” 912
A.2d 1186, 1189 (D.C. 2006). This case is more like Barksdale-Showell, where
“the jury heard Ms. Barksdale-Showell‟s testimony that there were no warnings of
any kind and could reasonably infer that Ms. Barksdale-Showell, who had not
encountered any problem during any other point in her walk from her home to the
bus stop, exiting the bus, walking into the Metrorail station, and onto the escalator,
was subjected to an unreasonably dangerous condition.” 965 A.2d at 25-26.
                                                                       (continued…)
                                        16

testimony leaves open the possibility that there was such a hidden danger that was

well known to WMATA but not to Ms. Reeves, and Ms. Reeves‟ testimony and

sworn statements further suggest that the condition existed for a sufficient length

of time to put WMATA on constructive notice of the existence of the condition,

giving WMATA an opportunity to warn Ms. Reeves of the danger. Viewing the

evidence in the light most favorable to the Ms. Reeves, therefore, leads to the

conclusion that WMATA may in fact have had a duty to warn Ms. Reeves of the

hazard. Thus, since Ms. Reeves‟ testimony and affidavit further suggest that

WMATA failed to warn her about the wet floor, and also that WMATA‟s failure to

warn proximately caused her fall, see supra note 10, the trial court erred in

granting summary judgment to WMATA; a genuine issue of material fact existed

and the case should have proceeded to trial.



       Accordingly, for the foregoing reasons, we vacate the orders of the trial

court and remand this case for further proceedings.



                                               So ordered.




(…continued)
Under these circumstances, we held that “a reasonable juror could find in [Ms.
Barksdale-Showell‟s] favor on causation.” Id. at 26.
