Johnson v. Washington Metropolitan Area Transit Authority

• Decision Date: 22 August 1989
• Docket Number: No. 88-7073,88-7073
• Citation: 280 U.S.App.D.C. 53,883 F.2d 125
• Parties: Eleanor T. JOHNSON, et al., Appellants v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 125

883 F.2d 125

280 U.S.App.D.C. 53

Eleanor T. JOHNSON, et al., Appellants v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.

No. 88-7073.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 13, 1989.

Decided Aug. 22, 1989.

Appeal from the United States District Court for the District of Columbia (C.A. No. 86-3110).

David T. Smorodin, Washington, D.C., with whom W. David Allen, Seabrook, Md., was on the brief, for appellants.

Bruce P. Heppen, with whom Fredric H. Schuster, Gerard J. Stief, Robert J. Kniaz and Robert L. Polk, Washington, D.C., were on the brief, for appellee.

Sara E. Lister also entered an appearance for appellee.

Before MIKVA and RUTH BADER GINSBURG, Circuit Judges, and HOGAN, ^* District Judge.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Eleanor and Franklin Johnson's daughter was struck and killed by a Washington Metropolitan Area Transit Authority ("WMATA") subway car. The district court dismissed their suit against WMATA on summary judgment. We conclude that the district court erred in finding that certain internal inconsistencies in the testimony of two witnesses rendered that testimony inherently incredible. Because the district court disregarded aspects of that testimony which were favorable to appellants in evaluating whether there were genuine issues of material fact, we reverse and remand this case to the district court for further proceedings.

I. BACKGROUND

On March 20, 1986, Devora Johnson, a 29-year-old medical claims examiner and mother of a three-year-old, left work in Rockville, Maryland, rode the subway part-way home, and ostensibly waited to change trains at the Metro Center station. What happened next is the subject of this suit. All the witnesses say that she leapt, purposefully, onto the subway tracks as the train was approaching. Even appellants conceded at oral argument that all the evidence supported the conclusion that Devora had jumped, and that no evidence suggested she fell or was pushed. Devora had a history of mental illness. She was hospitalized seven times with diagnoses such as schizophrenia, paranoia and manic depressive syndrome, and twice as having "suicidal ideations."

It is disputed, however, whether the train was far enough away from Devora when she jumped to have been able to stop before hitting her. The subway train was operating automatically when it entered the station, programmed by computer. At some point, the train operator saw Devora on the tracks and pushed the emergency stop button and the brakes engaged. The braking stopped the train short of its usual stopping point, but not enough to avoid the accident. The police questioned more than a dozen witnesses, whose versions of the event are not wholly reconcilable. Some said that the train was so close when Devora jumped that she was hit in mid-air. Others said that she jumped onto the tracks, then laid down on them and waited until the train struck her. The medical examiner's testimony--that the victim's injuries were consistent with being run over but not with being hit in mid-air--supports the version that she was lying down when hit. This version is also supported by testimony from a WMATA maintenance employee that he found a coil under the front of the subway car broken after the accident, but there were no marks or indications of collision on the front of the car.

The witnesses were asked to estimate the distance between Devora and the train at the time she jumped. Their estimates vary from 4 to 45 feet. It is undisputed that if anything within this range is correct, the train could not have stopped in time under any circumstances. When the train entered the station, it was travelling 28.66 miles per hour, or 41.95 feet per second. When the operator pushed the emergency button it was travelling 15.65 miles per hour, or 22.96 feet per second. Even at the slower speed, the train would have required 157 feet to stop.

However, two witnesses also testified as to how much time elapsed between the jump and the collision. Ronald Thompson, a WMATA employee at the time of the accident, estimated that 5 to 15 seconds elapsed. He also quoted Joanne Funderburk, a current WMATA employee, as having said at the time that she thought it was 20 to 30 seconds. A second witness, Ricardo Louis Moore, estimated the interval at 10 seconds. Appellants presented expert testimony that in 10 seconds an attentive train operator could have seen the victim jump, pushed the brake button and stopped the train before it hit her. Thompson and Moore also estimated that the distance between Devora and the train was 10 to 20 feet, at the time she jumped.

After the accident, following standard WMATA procedure, the train operator was tested for the presence of alcohol or drugs. He tested positive for marijuana and cocaine. A validating test, using thin layer chromatography, was performed. No tests showing the quantity of drugs taken or the current level of impairment, if any, were performed. The operator claimed, in his deposition, that he had not used marijuana or cocaine in the previous three months.

II. DISCUSSION

At the core of the district court's grant of summary judgment to WMATA is its discrediting of Thompson's and Moore's testimony. The court found, and we do not disturb its findings, that WMATA was not negligent in failing to prevent Devora from jumping and, in any case, any negligence claim was barred by Devora's assumption of the risk or at least contributory negligence. This left the question of whether the train operator had the last clear chance to prevent Devora's death. Having put aside the testimony that the train operator had some 10 seconds or so to respond after Devora jumped, the court concluded from the remaining evidence that not even the most diligent operator could have stopped the train in time and therefore the last clear chance doctrine was inapplicable.

The district court's grant of summary judgment can be upheld only if, viewing the evidence in the light most favorable to the Johnsons, there is no genuine issue of material fact. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Fed.R.Civ.P. 56(c); cf. Capital Transit Co. v. Gamble, 160 F.2d 283 (D.C.Cir.1947) (reversing denial of judgment NOV where the only evidence introduced to support plaintiff's negligence claim was equally consistent with a finding of no negligence and therefore was insufficient to establish either). If reasonable minds could differ as to the import of the evidence, summary judgment cannot be sustained. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986).

The district court explained that it disregarded Thompson's and Moore's estimate of the number of seconds that elapsed as inherently incredible because it was contradicted by a number of other witnesses and because it was inconsistent with the same witnesses' estimations of distance. We conclude that neither circumstance supports the court's excluding this testimony from its summary judgment determination.

The fact that there were witnesses whose testimony, that the train was in the station and only a few feet from Devora when she jumped, contradicted that of Thompson and Moore plainly does not render Thompson's and Moore's testimony incredible. It merely demonstrates that the issue is disputed. The judge's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter but only to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510.

Judges may, under certain circumstances, lawfully put aside testimony that is so undermined as to be incredible. The removal of a factual question from the jury is most likely when a plaintiff's claim is supported solely by the plaintiff's own self-serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately committed perjury. See Ralston Purina Co. v. Hobson, 554 F.2d 725 (5th Cir.1977) (upholding judgment NOV because claimant's testimony as to how and why chickens were supposed to have died was unsupported by other evidence and inconsistent with the known physical facts and considerable expert testimony on chicken behavior); Law v. Virginia Stage Lines, 444 F.2d 990 (D.C.Cir.1971) (upholding judgment NOV despite plaintiff's self-serving testimony because it was unsupported by other evidence and contradicted by disinterested as well as interested witness); Southern Pacific Co. v. Matthews, 335 F.2d 924 (5th Cir.1964) (reversing judgment for plaintiff because it was supported only by his self-serving testimony which was contradicted by disinterested witness testimony and undisputed proof as to the physical layout of the railroad right of way), cert. denied, 379 U.S. 970, 85 S.Ct. 668, 13 L.Ed.2d 562 (1965); Washington, Marlboro & Annapolis Motor Lines v. Maske, 190 F.2d 621 (D.C.Cir.1951) (reversing judgment for plaintiff because it was supported only by her self-serving testimony which was not only contradicted by numerous disinterested witnesses but also undermined by proof of her earlier statement that the opposite was true), cert. denied, 342 U.S. 834, 72 S.Ct. 56, 96 L.Ed. 631 (1952).

In contrast, both Moore and Thompson are disinterested witnesses. Their testimony that some 10 seconds or so elapsed after the victim jumped and before she was hit is not, in itself, inherently implausible or contradicted by undisputed physical evidence. There is no evidence suggesting that either has perjured himself.

The difficulty that the testimony presents is that neither Thompson nor Moore can be correct about both how much time elapsed and how far the train was from Devora when she jumped. But that the time and distance...