Londono v. Washington Metropolitan Area Transit Authority

• Decision Date: 02 July 1985
• Docket Number: No. 84-5603,84-5603
• Citation: 766 F.2d 569
• Parties: Sandra I. LONDONO and Jessica Londono, Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY v. WESTINGHOUSE ELECTRIC CORPORATION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 569

766 F.2d 569

247 U.S.App.D.C. 79

Sandra I. LONDONO and Jessica Londono, Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY v. WESTINGHOUSE ELECTRIC CORPORATION.

No. 84-5603.

United States Court of Appeals, District of Columbia Circuit.

Argued April 17, 1985.

Decided July 2, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-01866).

Michael I. Rieger, Arlington, Va., for appellants.

Thomas Fortune Fay, Olney, Md., for appellee.

Before MIKVA and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This case arises out of a personal injury sustained by a young child on an escalator operated by the Washington Metropolitan Area Transit Authority ("WMATA"). The plaintiffs' case rested on the doctrine of res ipsa loquitur, but the District Court concluded that they could not establish facts sufficient to permit a jury verdict for them based on that theory. Our examination of District of Columbia law, including an important judicial decision rendered after the District Court's ruling in the case at hand, persuades us that the facts which the plaintiffs may be able to prove would be adequate to support a res ipsa loquitur theory. For that reason, we reverse and remand the case to the District Court for further proceedings.

I

Jessica Londono was approximately two and one-half years old at the time of the incident in question. She was riding on an escalator descending to a WMATA metro rail station in Washington, D.C., in the company of her mother and four other adult relatives, when she suddenly screamed in pain. Upon examination by her mother, Jessica was discovered to have sustained a significant laceration of her right leg. The incident was reported to WMATA personnel, and Jessica received medical treatment.

Plaintiffs brought a diversity action in United States District Court for the District of Columbia, and defendant moved for summary judgment. In opposition to that motion, plaintiffs made clear that they were relying on a theory of res ipsa loquitur. The District Court held that plaintiffs had "not established facts sufficient to invoke res ipsa loquitur," Memorandum Opinion at 3, and granted summary judgment in favor of WMATA. The plaintiffs' major failing, in the District Court's view, appears to have been an inability to show the specific cause of the accident:

"First and foremost," plaintiffs have failed to demonstrate a probability that the escalator or part thereof, rather than some other instrumentality, is the cause of the child's injury. The cause of the accident is not known and it simply is not enough to allege that the accident occurred while plaintiffs were descending on an escalator. The nature of the child's injury indicates a possibility that she might have been cut by some protruding object or the like connected to the escalator wall. Not only is this sheer speculation, but inspections done by WMATA and Westinghouse both before and immediately after the accident failed to disclose any such offending instrumentality. Nelson Aff. at 1; Westinghouse Motion for Summary Judgment, Ex. B. Moreover, the specific vertical direction of the child's laceration points away from an injury caused by an object on the escalator wall, since such an instrumentality would likely produce a diagonal cut.

Memorandum Opinion at 3-4. ¹ The court thus relied upon one fact which was, in truth, disputed between the parties, namely the immediately of a post-incident inspection, compare Defendant's Statement of Material Facts as to Which There Is No Genuine Issue, reprinted in Appendix to Brief for Appellant ("Appendix") at 6-7, with letter of plaintiffs' attorney to defendant's attorney with copy to the court, reprinted in Appendix at 20; the court also relied upon one conclusion for which there appears to have been no evidence, namely, that the direction of the laceration indicated a cause other than the escalator. ²

Recognizing that causation may be established through circumstantial evidence, the District Court nonetheless opined that the evidence which had been adduced failed to "eliminate[ ] from consideration a whole host of other possible causes." Memorandum Opinion at 4-5. Since plaintiffs' evidence did not make her theory reasonably probable, but merely possible, the court refused to allow a jury to speculate on causation and thus granted summary judgment for the defendant.

II

Under applicable law, "summary judgment is proper only where there is no genuine issue of material fact and, viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law." Byers v. Burleson, 713 F.2d 856, 859 (D.C.Cir.1983) (citing E.P. Hinkel & Co. v. Manhattan Co., 506 F.2d 201, 204 (D.C.Cir.1974); Davidson v. Coyne, 347 F.2d 471, 472 (D.C.Cir.1965)). The burden rests on the moving party to show the absence of any real factual issue. Alexander v. Pan American World Airways, Inc., 757 F.2d 362, 363 (D.C.Cir.1985) (citation omitted). "Indeed, the record must reveal that the party opposing the motion would not be entitled to prevail under any discernible circumstances." Kreuzer v. American Academy of Periodontology, 735 F.2d 1479, 1495 (D.C.Cir.1984).

Since the plaintiffs' case rests on a theory of res ipsa loquitur, our analysis naturally must be informed by the elements of that theory as articulated in the local courts of this jurisdiction. As good fortune would have it, the District of Columbia Court of Appeals has spoken quite recently to the elements of res ipsa loquitur. As articulated by that court, the conditions required for application of that familiar principle of tort law are as follows:

(1) The event must be of the kind which ordinarily does not occur in the absence of someone's negligence;

(2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;

(3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Bell v. Westinghouse Electric Corp., 483 A.2d 324, 329 (D.C.1984) (quoting W. Prosser, Law of Torts Sec. 39, at 214 (4th ed.1971) ).

While the articulation of these elements in Bell differs from some earlier statements in the D.C. cases, Bell transmits no signal that those earlier statements are now to be considered invalid. Thus, it is still the law of the District of Columbia that "[t]he party who seeks to rely on res ipsa loquitur must establish that 'the cause of an accident is (1) known, (2) in the defendant's control, and (3) unlikely to do harm unless the person in control is negligent.' " Washington Sheraton Corp. v. Keeter, 239 A.2d 620, 622 (D.C.1968) (quoting Washington Loan & Trust Co. v. Hickey, 137 F.2d 677, 679 (D.C.Cir.1943), and citing Uberti v. District of Columbia, 215 A.2d 766 (D.C.1966)). The important aspect of this earlier, alternative formulation of res ipsa loquitur is that the cause of the accident must be known before we can determine that the causal instrument was within the exclusive control of the defendant and that the injury was not due to an act of the plaintiff. See Jones v. Safeway Stores, Inc., 314 A.2d 459, 461 (D.C.1974) ("the doctrine of res ipsa loquitur ... does not come into play in cases where the cause of the accident is unknown and the instrumentality of the injury was not shown to be under the exclusive control of the defendant") (citations omitted).

We turn then to the question whether the plaintiffs could adduce sufficient evidence from which a jury would properly be permitted to find the cause of Jessica's laceration. Clearly, if the cause is looked at restrictively as some particular, identified protruding object, there is and will likely be insufficient evidence properly to get to the jury. The post-incident inspection, at whatever time it was done, turned up no such protruding object; in addition, no evidence was forthcoming that any of the adult relatives who accompanied Jessica on the fateful escalator ride observed any such object. However, it is not at all clear that, under District of Columbia law, our view of "cause" should be so restricted to an object or instrument other than the escalator. If, instead, the escalator itself could properly serve in law as the cause of the accident, plaintiffs could satisfy the elements of res ipsa loquitur without establishing the precise means by which the escalator brought about the injury.

Establishing that the escalator was the cause of Jessica's injury, without demonstrating how the laceration occurred, would naturally have to rest on circumstantial evidence; but it is elementary that "facts can be established by circumstantial as well as direct evidence," Kerlin v. Washington Gas Light Co., 110 F.Supp. 487, 488 (D.D.C.1953), aff'd, 211 F.2d 649 (D.C.Cir.1954). To be sure, "[w]hen plaintiff relies on circumstantial evidence to establish causation as an element of res ipsa loquitur, the evidence must make plaintiff's theory reasonably probable, not merely possible, and more probable than any other theory based on the evidence." Quin v. George Washington University, 407 A.2d 580, 585 (D.C.1979) (citing Palleson v. Jewell Cooperative Elevator, 219 N.W.2d 8, 13 (Iowa 1974); Kerlin v. Washington Gas Light Co., supra, 110 F.Supp. at 488). However, if we bear in mind that it is the cause of the injury rather than the mechanism that must be established, see Kerlin v. Washington Gas Light Co., supra, 110 F.Supp. at 488 ("defendant confuses the cause of the accident with the manner in which it was caused, lack of knowledge of which, in plaintiff, is a reason for the doctrine of res ipsa loquitur "), it is not at all clear that plaintiffs would be unable to establish causation.

We pause here to recall that the District Court's conclusion was based in part on the conclusion that an inspection had occurred immediately after the...