Lipnick v. US, Civ. A. No. 87-2747.

• Citation: 717 F. Supp. 902
• Decision Date: 19 July 1989
• Docket Number: Civ. A. No. 87-2747.
• Parties: Lewis F. LIPNICK, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

717 F. Supp. 902

Lewis F. LIPNICK, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 87-2747.

United States District Court, District of Columbia.

July 19, 1989.

Nicholas D. Dale, Bethesda, Md., for plaintiffs.

Charles F. Flynn, Asst. U.S. Atty., Washington, D.C., for defendant.

OPINION

JOYCE HENS GREEN, District Judge.

Plaintiffs Lewis F. Lipnick and Lynn-Jane Lipnick brought this negligence action against defendant United States of America. A two-day trial of this matter was held before the Court on July 10 and 11, 1989. Having carefully considered all of the testimony and evidence presented, as well as the entire record herein, judgment will be entered in favor of plaintiffs.

I. Background

In 1964 Congress authorized the creation of the John F. Kennedy Center for the Performing Arts as "the sole national memorial to the late John Fitzgerald Kennedy within the city of Washington D.C. and its environs." 20 U.S.C. § 76q. The memorial, more commonly known as the Kennedy Center, was built on lands acquired by the National Capital Planning Commission, id. § 76i, and is administered by a Board of Trustees appointed by the President and located within the Smithsonian Institution. Id. § 76h(a). The National Park Service, a component of the Department of Interior, is responsible for providing "maintenance, security, information, interpretation, janitorial and all other services necessary." Id. § 76l(e).

In addition to its commemorative function, the Kennedy Center also serves as a center for the presentation of performances in music, opera, drama, dance and poetry. 20 U.S.C. § 76j(a)(1). One group that frequently appears at the Kennedy Center is the National Symphony Orchestra (NSO), a world-renowned classical music orchestra. The NSO has leased space at the Kennedy Center since approximately 1971.

Lewis F. Lipnick, who is now 43 years old, has been a member of the NSO for 19 years and presently is the orchestra's contrabassoonist and one of its bassoonists. At approximately 9:00 a.m. on the morning of May 29, 1986, Mr. Lipnick arrived at the Kennedy Center for an NSO rehearsal. After parking his car on the "B" level of the Kennedy Center's parking garage,¹ Lipnick approached a door that had been designated for use by NSO musicians which led upstairs to the NSO backstage and rehearsal areas. As described by numerous witnesses and in several exhibits introduced into evidence, the door in question is a heavy metal fire door which (when viewed from the garage) has hinges on the left, a handle on the right and swings open towards the garage. On the back side of the door is a "crash" or "panic" bar that NSO employees had to push in order to leave the building and enter the garage. In front of the door is a concrete step which extends approximately two feet from the door and approximately six to eight inches above the floor of the garage. The door is operated by an electronic card reader which is located approximately two feet to the right of the door and is recessed some 12 inches behind the plane of the door. A concrete beam extends at right angles to the door and hangs down from the ceiling below the top of the door.

According to his unrebutted testimony, Mr. Lipnick approached the door and put a black bag and his bassoon on the ground nearby. He then placed his card into the card reader and pulled the door handle. The door did not open. Lipnick inserted his card and pulled two more times, but the door still would not open. On the fourth try, he succeeded in pulling the door free. When the door "cut loose" on that pull, however, Lipnick lost his balance, got his hand tangled in the handle, and was pulled toward the door as it swung to the left. He remembers hearing a loud crash and then feeling pain as he was hit by the door. Lipnick then recalls seeing Marcia Gittinger, the NSO's music librarian, appear and lead him upstairs. He was taken to the hospital, treated for a concussion and released.

Lipnick and his wife Lynn-Jane Lipnick² commenced this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et seq., against the United States of America claiming that the doorway, door and card reader system were "negligently designed, installed, maintained and operated." Complaint ¶ 10.³ After a period of discovery, the parties participated in a settlement conference before the Magistrate and pretrial conference before the Court. The trial commenced on July 10, 1989.

II. Discussion

A district court in an FTCA case is bound to apply the law of the state in which the alleged negligent act or omission occurred. Beattie v. United States, 756 F.2d 91, 104 (D.C.Cir.1985). The incident in the instant case took place in the District of Columbia, where the elements of negligence are "a duty of care owed by the defendant to the plaintiff, a breach of that duty by the defendant, and damage to the interests of the plaintiff, proximately caused by the breach." District of Columbia v. Cooper, 483 A.2d 317, 321 (D.C. 1984). To these considerations the Court now turns.

A. Duty of Care

An individual is liable to another only when he owes him some duty of care. Because, however, negligence law "is founded upon the notion of the actor's culpability ... and the belief that he could have, and should have, taken steps to avoid the potential injury," Munson v. Otis, 396 A.2d 994, 996 (D.C.1979), a duty of care will only arise with respect to a condition that poses an "unreasonably great risk of harm." Westinghouse Electric Corporation v. Nutt, 407 A.2d 606, 609 (D.C.1979) (quoting Restatement of Torts § 282 (1965)). Thus, "the legal duty is not to avoid all risk of injury possibly resulting from one's actions (or omissions), but only the unreasonable risk." Munson, 396 A.2d at 996; see also Nutt, 407 A.2d at 609-10 ("liability is imposed only for the creation of an unreasonable danger").

Lipnick raised two bases for his claim of negligence. He asserted that the design of the door and card reader system posed an unreasonable risk of danger because, in order to open the door, he was required to stand with one foot on the step and one foot on the floor of the garage, simultaneously use his right hand to insert his card and his left to open the door with his body stretched out in an awkward position, and pull the door quickly because the latch mechanism on the door only allowed it to remain open for one and a half to two seconds before closing again. Plaintiff also alleged that an unreasonable risk of harm was presented by the maintenance and operation of the door, which he contends was frequently stuck and did not have a proper "stopping" mechanism to prevent it from hitting the overhanging concrete abutment. The United States countered by arguing that no unreasonable risk of harm was presented by the door or card reader. The evidence presented at trial, however, demonstrated that the maintenance and operation of the door posed an unreasonable danger to all of its users, including plaintiff.⁴

Plaintiff and all of the witnesses who used the door in question indicated that it frequently did not operate properly during the time leading up to plaintiff's accident. The most serious problem encountered was that the door often stuck in the door frame. When this happened, it became necessary to pull the door harder to attempt to dislodge it from the frame. NSO employees testified at trial that the door could often only be opened with "a good, healthy jerk," "considerable force," or "an extremely strong tug." Robert Kraft noted that the door was sometimes "extremely difficult" to pry open, while Richard White stated that at times the door was "difficult if not impossible" to unstick. White also noted that occasionally he could not exit this fire door from the Kennedy Center into the garage because of the jamming. The condition of the door varied greatly from time to time. Sometimes the door would open easily and one pull would suffice. At other times, it became necessary to make several additional attempts in order to dislodge the door. Weeks or months would pass when the door would not open correctly, followed by a substantial period of time in which no problems would occur. One witness, Marcia Gittinger, summed up the matter quite succinctly when she stated that the door was "consistently inconsistent."

A stuck door is not by itself, of course, unreasonably dangerous. Several other factors, coupled with the severe jamming problem, nonetheless convince the Court that an unreasonable risk of harm existed here. For one thing, plaintiff and the other NSO employees stressed that the door was heavy. The electronic card reader was also inconsistent in operation, frequently requiring several card insertions and pulls before the door latch would click open. The position of the concrete beam is also problematical. As several witnesses related, the beam was virtually at right angles to the door and hangs down below the top of the door. See also Plaintiffs' Exhibits (Pl.Exs.) 11, 12f, 12g. This meant that the door could only open approximately 90 degrees before its arc would be impeded by the abutment. Finally, there is a "stopper" at the top of the garage-side of the door, see Pls.Ex. 12a, 12f, but the stopper was not set in such a fashion to prevent the door from hitting the beam. Ms. Gittinger, whose office is located almost directly above the door, noted that she often heard the door hitting against the beam while she worked.

The question of unreasonable risk is often stated as one of foreseeability. Lacy v. District of Columbia, 424 A.2d 317, 323 (D.C.1980) ("Foreseeability of particular conduct is a relevant factor in determining the nature of the risk and the standard of conduct"). The risk of harm from operation of this door was foreseeable. The situation that existed at the time of the accident was as follows: a heavy metal door located at right angles to a concrete beam was frequently jamming, causing...