Davies v. Dist. of Columbia, 2012 CA 001880 V

• Decision Date: 12 May 2015
• Docket Number: 2012 CA 003991V,2012 CA 001880 V
• Parties: FANTA DAVIES, Personal Representative of the Estate of Haja I. Seymour-Wilson Deceased Plaintiff, v. DISTRICT OF COLUMBIA et. al., Defendants. ROBERT TWYMAN, Plaintiff, v. FANTA DAVIES, Personal Representative of the Estate of Haja I. Seymour-Wilson Deceased Defendant.
• Court: D.C. Superior Court

FANTA DAVIES, Personal Representative of theEstate of Haja I. Seymour-Wilson Deceased Plaintiff, v. DISTRICT OF COLUMBIA et. al., Defendants.

ROBERT TWYMAN, Plaintiff, v. FANTA DAVIES, Personal Representative of the

Estate of Haja I. Seymour-Wilson Deceased Defendant.

2012 CA 001880 V

2012 CA 003991V

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION

May 12, 2015

Judge O'Keefe

ORDER

Before the Court are cross-motions for summary judgment. The District filed is motion on February 27, 2015, and Plaintiff filed her opposition and cross-motion on March 25, 2015. The Court considers all responsive pleadings in this Order.

Standard of Review

Under Rule 56(c), summary judgment shall be granted if the record shows that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. See Osbourne v. Capital City Mortgage Corp., 667 A.2d 1321, 1324 (D.C. 1995); Smith v. Washington Metropolitan Area Transit Authority, 631 A.2d 387, 390 (D.C. 1993). Summary judgment "is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the [Superior Court rules] as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Mixon v. Washington Metropolitan Area Transit Authority, 959 A.2d 55, 58 (D.C. 2008) (internal quotations omitted). The purpose of summary judgment "is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

"A genuine issue of material fact exists if the record contains 'some significant probative evidence ... so that a reasonable fact-finder would return a verdict for the non-moving party.'" Brown v. 1301 K Street Limited Partnership, 31 A.3d 902, 908 (D.C. 2011) (citing 1836 S Street Tenants Ass'n v. Estate of Battle, 965 A.2d 832, 836 (D.C. 2009) (footnote omitted)). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden to establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Osborne, 667 A.2d at 1324. If the moving party carries this burden, the burden shifts to the non-moving party to show the existence of an issue of material fact. Bruno v. Western Union Financial Services, Inc., 973 A.2d 713, 716 (D.C. 2009) (quotations and citations omitted); Osbourne, 667 A.2d at 1324. The non-moving party may not carry this burden merely with conclusory allegations, Greene, 164 F.3d at 675; rather he or she "must produce at least enough evidence to make out a prima facie case in support of his [or her] position." Bruno, 973 A.2d at 717.

The Court must consider the evidence in the light most favorable to the opposing party and grant summary judgment only if no reasonable juror could find for the opposing party as a matter of law. Biratu v. BT Vermont Avenue, LLC, 962 A.2d 261, 263 (D.C. 2008); Tucci v.District of Columbia, 956 A.2d 684, 690 (D.C. 2008). The Court cannot "resolve issues of fact or weigh evidence at the summary judgment stage." Barrett v. Covington & Burling, LLP, 979 A.2d 1239, 1244 (D.C. 2009). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, are jury functions, not those of a judge" deciding a motion for summary judgment. Anderson, 477 U.S. at 255.

Discussion

I. Contributory Negligence

First, the Court rejects the District's contention that its motion should be treated as conceded pursuant to Rule 12-I(k). Plaintiff submitted a responsive counter statement of material facts in dispute with its opposition to the District's motion for summary judgment. Rule 12-I(k) provides the Court with discretion to assume the facts claimed by the moving party are admitted to when there is no counter statement submitted, and Plaintiff's statement of facts as well as her opposition brief and cross-motion for partial summary judgment makes it abundantly clear that the issue of the decedent Seymour-Wilson's negligence is disputed.

At the crux of Defendant's motion is the simple argument that the decedent was negligent in the operation of her vehicle when she collided with the Department of Public Works truck, and such contributory negligence is an affirmative defense that bars liability. See Juvenalis v. District of Columbia, 955 A.2d 187, 193 (2008). The District submits that the decedent violated at least three traffic regulations as a result of having driven above the posted speed limit of 45 mph. However, contributory negligence does not bar recovery where the defendant violated a statute enacted for the benefit of the plaintiff. See Martin v. George Hyman Construction Co., 395 A.2d 63 (D.C. 1978). The 2009 Manual on Uniform Traffic Control Devices ("MUTCD") and the D.C. Manual are the governing manuals that impose specific duties related to hazardsresulting from the disruption of the normal flow of traffic in traffic work zones. Plaintiff insists that the District violated the applicable requirements, which include among others, the mandatory use of an arrow board. If this is the applicable standard and the District violated the mandatory requirement of having an arrow board, the contributory negligence is not an affirmative defense preventing Plaintiff from recovering.¹

II. MUTCD and D.C. Manual Standards

Plaintiff moves for partial summary judgment against the District for violating the regulations governing trash pickup by failing to utilize an arrow board warning vehicle. The 2009 Manual on Uniform Traffic Control Devices ("MUTCD") is recognized as the national standard for all traffic control devices installed on any street open to public travel, and is incorporated by reference in 23 C.F.R. § 655, Subpart F. MUTCD, at 1-1 ¶ 2. By regulation, the District adopted the MUTCD and each subsequent edition as the official standard for control devices in the District of Columbia in the 2006 D.C. Manual. See 18 DCMR § 2100.2-2100.3.² "[The D.C.] Manual is the District of Columbia's version of Part 6 of the Manual on Uniform Traffic Control Devices (MUTCD) 2003 edition and either meets or exceeds the requirements for the temporary traffic control established by the Federal Highway Administration." D.C. Manual. The District insists that the D.C. Manual, which is from 2006, has not adopted any state supplement after the publication of the 2009 MUTCD, and so the 2009 MUTCD supersedes anything contrary to it found in the 2006 D.C. Manual. The Court is not persuaded by this argument, and notes that the MUTCD must be incorporated by each state, but the District is freeto implement supplemental standards in the D.C. Manual that exceed the requirements of the MUTCD, and those additional standards are not preempted by subsequent editions of the MUTCD. These supplemental requirements in the D.C. Manual are found in the text under the heading "Standard." The D.C. Manual defines a "Standard" as "a statement of required, mandatory, or specifically prohibitive practice regarding a traffic control device." D.C. Manual, at 1-3. The manual states that it is possible for a "Standard" to be modified by an "Option." Id. ("Options may contain allowable modifications to a Standard . . . ."). The MUTCD and D.C. Manual, together, provide the applicable mandatory temporary traffic control measures that the District is bound to follow.

The parties agree that the type of road work being performed is characterized as a "mobile operation," or work performed with no stops or short, intermittent stops. The District contends that the applicable standard from the MUTCD requires that "[m]obile operations shall have appropriate devices on the equipment (that is, high-intensity rotating, flashing, oscillating, or strobe lights, signs or special lighting), or shall use a separate vehicle with appropriate warning devices." 2009 MUTCD page 621 ¶ 22 (emphasis added). The District maintains it was therefore not required to have a shadow vehicle for the trash pickup operation and satisfied this provision by having a flashing light³ on the truck.

Mobile operations are performed under different circumstances such as a varied type of roads and highways, which calls for utilization of different temporary traffic control measures. These different situations are specifically set forth in the manuals. The Standard that directly addresses the situation at issue is found under the discussion of mobile operations on a multi-lane road: "An arrow board shall be used when a freeway lane is closed." MUTCD, at 702. Theevidence submitted by the parties, including photographs of the accident, a video surveillance, and deposition testimony indicates that the truck was stopped in the left-hand lane of the Third Street Tunnel, effectively closing the lane to drivers. As such was the situation, Plaintiff argues that the District was required to use an arrow board. The D.C. Manual also provides that "[i]f there are mobile operations on a high-speed travel lane of a multilane divided highway, arrow panels shall be used . . . ." D.C. Manual, at 8-4. The purpose of the arrow board is to provide a bold warning to motorists traveling on roads with high speeds (the aforementioned Standard references posted speeds of 45 mph or greater) of a blocked lane, and to avoid surprise of confronting the stopped truck and potential collision. The Court rejects the District's argument that because the Standard is set forth in a "Typical Application" section, it is only an illustration to show various temporary traffic control methods. Each "Standard" sets forth requirements for temporary traffic control methods under specifically defined situations in order to best provide safety measures for motorists and are not intended to be merely illustrative.

In response, the District states that the D.C. Manual provides...