Messina v. District of Columbia

Decision Date17 August 1995
Docket NumberNo. 94-CV-17.,94-CV-17.
Citation663 A.2d 535
PartiesGary MESSINA, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
CourtD.C. Court of Appeals

Thomas Fortune Fay, Washington, DC, for appellant.

Martin B. White, Assistant Corporation Counsel, with whom Garland Pinkston, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, Washington, DC, were on brief, for appellee.

Before TERRY, SCHWELB, and KING, Associate Judges.

KING, Associate Judge:

In this negligence action against the District of Columbia ("District"), appellant Gary Messina ("Messina"), father and next friend of minor Karyne Messina ("Karyne"), seeks reversal of the entry of judgment as a matter of law in favor of the District, contending that the testimony of his expert witness was sufficient to establish the requisite standard of care. Messina also contends that it was reversible error for Judge Burgess to deny his motion to amend the pre-trial order to permit the testimony of a new witness.1

For the reasons set forth below, we hold that, because Messina failed to present expert testimony sufficient to establish the standard of care owed to Karyne by the District, he did not present a prima facie case of negligence; accordingly, we affirm the trial court's grant of the District's motion for judgment as a matter of law.


In September 1990, while in the fourth grade at the Lafayette Elementary School in the District, Karyne Messina broke her arm when she fell to the ground while playing on a set of monkey bars at the school's playground. The monkey bars used by the child were known as a horizontal ladder; that is, a ladder of evenly-spaced bars bolted parallel to the ground to four wood posts approximately eight feet high. Karyne was swinging from one bar to the next with her hands when one bar rotated in its sockets, causing her to lose her balance and fall to the ground.2 Karyne struck the ground, which she described as "hard packed mud, dirt" with some wood "chips" on it, with her left hand and arm, causing a fracture which required her arm to be kept in a cast for several months. According to her testimony, Karyne continues to experience pain in the arm when she plays sports and during changes in the weather.

On December 27, 1991, Messina brought this claim against the District, maintaining that the District was negligent in failing to make the ground safe beneath the monkey bars where Karyne fell. In a jury trial beginning on January 4, 1994, Messina presented Mr. Paul Hogan ("Hogan"), a playground designer and builder, as an expert on standards of care in the construction of playgrounds. Hogan testified that "within the public playground industry" there was a standard of care that required the District to have a certain quantity and quality of resilient cushioning material, such as mulch, wood chips, or chopped tires, on the ground under the monkey bars where Karyne fell. The witness testified that these standards had first been developed in 1933-34 in a publication by the American Recreation Association which advised the public of the need for playground safety. They were later developed into a handbook, which contained two articles written by Hogan, entitled Guidelines for Public Playground Safety, which was published by the Consumer Products Safety Commission ("CPSC") in 1981 ("1981 Handbook"), and again in 1991, a year after Karyne was injured, when the guidelines were "fine tuned." Hogan testified that the 1981 standards "had been accepted ... worldwide as the guidelines for proper playground safety development ... even though they weren't mandated by law and they weren't enacted by Congress."

In particular, Hogan testified that, to avoid fracturing a human skull, cushioning material below the monkey bars should provide a surface impact resistance of no more than 200 G's.3 Hogan stated that the 200 G guideline was developed in tests done on the human skull because "that is the only uniform part of a human body," and that based on these tests, the 1981 Handbook "recommends" a playground surface resistance of no more than 200 Gs.4 Mr. Hogan further testified that, in his opinion, in order to meet that standard, using wood chips or similar material as cushioning, it would be necessary to provide a layer approximately ten to twelve inches deep for playground equipment eight feet high like the equipment Karyne was using when she was injured.

At the close of Mr. Hogan's testimony, the trial court granted the District's motion for judgment as a matter of law, ruling that Hogan's testimony failed to establish a standard of care which the District was required to follow. This appeal followed.


"The plaintiff in a negligence action bears the burden of proof on three issues: the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury." Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.1988) (quoting Meek v. Shepard, 484 A.2d 579, 581 (D.C. 1984)). While expert testimony regarding the appropriate standard of care is not necessary for acts "within the realm of common knowledge and everyday experience," District of Columbia v. White, 442 A.2d 159, 164 (D.C.1982), "a plaintiff must put on expert testimony to establish what that standard of care is if the subject in question is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson." District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.1987) (citations omitted). Because the question whether the District should conform to a particular cushioning standard for the ground under the monkey bars to prevent injuries is not a subject within the understanding of the average juror, "expert testimony was essential." District of Columbia v. Moreno, 647 A.2d 396, 399 (D.C.1994) "Where expert testimony is necessary, however, it is not sufficient if it consists merely of the expert's opinion as to what he or she would do under similar circumstances." Toy, 549 A.2d at 7 (citations omitted). Rather, the expert must clearly articulate and reference "a standard of care by which the defendant's actions can be measured." District of Columbia v. Carmichael, 577 A.2d 312, 314 (D.C.1990) (citations omitted).

Through Mr. Hogan, Messina presented evidence that, as of the time of the accident, various authorities had recommended the 200 G cushioning guideline to prevent skull fractures as a desirable safety practice, but that the guideline had not been promulgated as a law or regulation. Hogan expressed his opinion that this guideline represented the worldwide standard for public playground safety. Hogan also testified that in order to meet that guideline, and for a fall of eight feet, ten to twelve inches of certain cushioning materials was necessary. The issue before us is whether Hogan's opinion was legally sufficient to permit this claim of negligence to go to a jury. We hold, on the circumstances presented here, that it was not.

The essence of Hogan's testimony was that the applicable standard of care is determined in a two-step process. First, the 200 G guideline determines the limit in order to avoid skull fractures. Second, to meet the 200 G guideline, Hogan opined that cushioning material must be provided to a specified depth depending upon the cushioning material and the height of the fall. Both steps must be satisfied in order to establish a standard of care.

With respect to the first step, Hogan testified that the 200 G guideline was promulgated in the 1981 Handbook.5 The 1981 Handbook specified, however, that any guidelines contained therein were not to be considered as CPSC standards, and were not mandatory. The 1981 Handbook, moreover, did not specify the depth of cushioning materials, which varies with the height of the equipment and the type of cushioning, necessary to meet the 200 G guideline. Nor did the 1981 Handbook provide a comparable guideline to avoid a broken arm like the one sustained in this case. In short, the 1981 Handbook did nothing more than recommend a 200 G guideline for skull fractures. Hogan, however, testified that the 200 G guideline, in his opinion, was a national standard for playground safety, and we will assume, without deciding, that it was sufficiently established as a national standard in this case. We now turn to the second step of the process.

Hogan testified that, through a series of tests he conducted some years after the 1981 Handbook was published, he determined that ten to twelve inches of mulch or similar material would meet the 200 G guideline for a fall of eight feet. A chart reflecting the results of his research was prepared by him and admitted into evidence.6 Hogan also testified that the chart had been published many times, but he did not say when the tests were performed or when or where the chart had been published. Hogan acknowledged that the results of his research have not been accepted by any government agency.7

We conclude that Hogan's testimony, with respect to the depth of cushioning material, even when viewed in the light most favorable to Messina, see Toy, 549 A.2d at 6, failed to establish any national standard of care; therefore Messina did not present a prima facie case of negligence. While Hogan relied on the chart he had developed, there was no evidence that it constituted any kind of national standard, that it had been promulgated, or was generally known, before Karyne was injured, or that the District should have been aware of its existence. Moreover, there was no evidence of the extent to which municipalities or other school systems actually complied, or even attempted to comply, with the guidelines...

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